The Unitary Presidency, its Source and its Attack on Democracy, the Constitution, the Public Treasury, and the Citizen’s Well-being

The concept of the unitary presidency, also known as the unitary executive, holds that the three branches of government have independent power to interpret the law. Hence, the President of the United States has power independent of Congress or the courts to interpret law and need not follow the will of either Congress or the Courts. Theoretically the Congress and the Courts have each the power to interpret the law as they see fit. They do not, however, have the power to enforce their interpretations. A glaring example of this doctrine has been Bush’s use of signing statements to exert his “law” over that of that of Congress, the only body authorized to create law by the Constitution. Signing statements were infrequently used prior to Bush, usually to protect the prerogatives of the executive branch against perceived overreaching by Congress. From President Monroe to Jimmy Carter signing statements had been used 75 times. G. W. Bush used this device at least 435 times in his first term alone. While Bush far surpasses other presidents in this practice, there was a notable increase during Reagan’s administration, during which Attorney General Ed Meese managed to get West Publishing to include presidential signings in its United States Code Annotated, perhaps the most prestigious and widely used record of United States law. Notice this is law not administrative directives, the latter of which is the province of the executive branch of government.

Bush has also used the “unitary executive” to abrogate treaties, to reject the Geneva Convention and to inflict imprisonment and torture contrary to American law and he has kept these secret imprisonments and tortures out of the courts by asserting his office’s supremacy. Never has fascism been so blatantly declared in this country.

As Jennifer Van Bergen describes it in her excellent Findlaw article http://writ.news.findlaw.com/commentary/20060109_bergen.html ,”The unitary executive doctrine arises out of a theory called "departmentalism," or "coordinate construction." According to legal scholars Christopher Yoo, Steven Calabresi, and Anthony Colangelo, the coordinate construction approach "holds that all three branches of the federal government have the power and duty to interpret the Constitution." According to this theory, the president may (and indeed, must) interpret laws, equally as much as the courts.”

Additionally, the unitary executive theory would reverses the definitive 1803 Marbury vs. Madison case in which Chief Justice Marshall’s Supreme Court ruled that in Constitutional issues the courts and ultimately the Supreme Court have the final say.

A major source for this so called theory, which obviously destroys the fundamental Constitutional premise of a balance of powers, has been the Federalist Society for Law and Public Policy Studies. This is a Far Right group formed in 1982. It is promoting a Far Right attack on the Constitution’s balance of powers requirement as well as the placing of its members in influential positions in government. It has active chapters in about 180 law schools. Among its members are Supreme Court Justices Scalia, Alito and Roberts and Bush appointees Ashcroft and Chertoff, A long, but partial, list of this group’s members in government as well as additional information can be found at http://www.pfaw.org/pfaw/general/default.aspx?oid=3149. The group is funded by such neofascist sources as the Scarife Foundation. According to Supreme Court Justice Alito, a member of the Federalist Society, the organization came out of the Nixon and Reagan administration. The first campus chapters were established at the Yale and Harvard and the University of Chicago law schools. All of this was in place when G. W. Bush became president. His first Attorney General was John Ashcroft, a member of the Federalist Society, who asserted that protest against the president in time of war was treason.

This is a sketch of the legal source of the unitary executive. However, one need only ask why would so much effort go into radical revisionism after 200 years of settled law and precedent involving the relationships of the three branches of government and the role of the Constitution? There has been no massive civil emergency that might occasion such thought as it did when FDR sought to change the composition of the Supreme Court by adding new members. The Court kept siding with property against the mass of suffering citizenry by declaring as unconstitutional measures to alleviate the depression the propertied class had caused.

The underlying motivation of this legal undertaking was to transfer government power and public wealth and resources to the private sector. As Grover Norquist has said, he wants”To drown the beast (government) in a bathtub.” I might add that it has not been Republicans alone that have adopted this posture. Bill Clinton with Al Gore’s assistance auctioned off major portions of the communications spectrum, a public property, to the corporations. Al Gore has now signed on to a major venture capitalist corporation asserting that this is a great opportunity for the private sector to profit from global warming. Gore asserted on the occasion that "What we (his corporation) are going to have to put in place is a combination of the Manhattan Project, the Apollo project, and the Marshall Plan, and scale it globally." As Andrew Leopold in Salon observes, all three of those projects were initiated and successfully completed by government, not corporations. As Naomi Klein says in her seminal new book Shock Doctrine, corporate globalization’s treatment of countries around the world has been brought home with a vengeance by G. W. Bush’s administration. What was done to Argentina, Russia, China, etc has now been done to the United States. The dismantling of government by way of privatization, the resultant massive transfer of public wealth to the private sector, and the oppression of the citizenry have been hallmarks of American globalization.

With the vast harm that Bush’s unprecedented attack on the Constitution and our democracy has done and the resultant chaos that he has inflicted as a unitary executive and the threat his actions pose for the future, it is imperative that current presidential candidates make very clear their views on the matter. Will they thoroughly reverse Bush’s illegal practices and refuse to accept any of the precedents s he has set? Will they refuse to use any of the power that Bush arrogated to the office and, in addition, propose and support laws to make this kind of behavior illegal in the future? Current candidates for president are, in the main, not making this issue anywhere near central to their campaigns. We must insist that they do. I suggest a thorough examination of each candidate’s web site to see if and to what extent this is a central issue for them. It is, in my judgment, not enough to make a few peripheral statements. What is needed is a firm, developed, commitment to reverse this dictatorial policy and replace it with laws or if feasible, a Constitutional amendment to prevent it from cropping up again.

Bob Newhard

Morality as a Source of Dictatorship

Moral values are by their nature absolute. In and of themselves they do not countenance a more-or-less response. When we modify our allegiance to them it is usually because they conflict with each other or that the real world we face is inconsistent with them. When we do breach a moral value in these cases we often say we are being “practical.” In contrast, the real world we live in is a mater of more-or-less, a matter of probability. Nature knows no certainty. Thus we humans are faced with a world of moral values and a natural world that couldn’t care less about those values.

There is yet another world we face, the world of society consisting of other human beings. This world, from the perspective of the individual, has elements of both the real world and the world of moral values. This societal world can respond to the demands of morality, which is one major source of social change. It can also behave like a natural force by, for example, putting people to death for violation of its laws. Because of its dual nature society is vulnerable to major shifts in how its members are treated.

One of the main devices for manipulating this societal world is to define its moral component in terms of religion or custom. In so doing we impose what would otherwise be personal values on the society as a whole. This leaves no room for individual dissent. In his essay On Liberty John Stuart Mill saw this distinction between personal moral values and society’s moral values as clearly as anyone when he asked “What, then, is the rightful limit to the sovereignty of the individual over himself? Where does the authority of society begin? How much of human life should be assigned to individuality, and how much to society? His answer, broadly put, was that when one’s act had a significant affect on others it was society’s concern; when it did not it was the individual’s domain. Thus, for example, consensual homosexual activity would be none of society’s business.

We can now see why moral values, being absolute and therefore arbitrary, requiring no additional proof or reason, when transferred from the individual to society, members of which may not choose to accept them, become the instruments of dictatorship. This is why societies that place a high emphasis on moral values are so often dictatorial in nature. John Calvin’s Geneva is an excellent example. This is also why so much of the world’s history has been shot through with conflict and bloodshed, namely, because some people sought to impose their beliefs and values on others.

This tendency in humans to transfer personal values to the social realm is exceptionally pernicious for a democratic society in which the right of the individual not to be subordinated to the dominance of others is crucial to democracy’s existence.

In our own time the attempt to impose religious values, often veiled with the phrase “family values,” by Christian fundamentalists, should not be viewed as a religious issue only. It is by its nature the leading edge of dictatorship, which G. W. Bush is facilitating with every arbitrary action of his imperial presidency. The Religious Right is an enemy of democracy as surely as are fundamentalist Muslims and must be shown as such to a citizenry that is obviously baffled and bamboozled by confusions that our nation’s founders saw through clearly.

Bob Newhard

Democracy and its economy

Democracy implies and requires a supporting economy lest it segue into an oligarchy or tyranny. That economy must insure that a society’s productivity is distributed in a reasonably equitable manner otherwise that productivity, usually expressed as wealth, will gravitate to those who are more successful at acquiring it. The process of acquiring wealth increasingly favors those who have wealth until the society devolves into one of the rich and the poor. Because wealth breeds power this means the wealthy will control the society and democracy will no longer exists. Thus a democratic society requires a reasonably equitable distribution of its productivity. Even at the beginning of our country Thomas Jefferson understood the threat a maldistibution of wealth posed to democracy. It was for this reason that he, in contrast to Hamilton, proposed a nation of independent farmers each with his own plot of land. Such a citizen would be more independent than one who worked for another in an industrial or commercial firm. We no longer have such a society. Agriculture itself has been industrialized and controlled by corporations that employ others to work the farms.

To preserve our democracy, if for no other reason, we must insure distribution of wealth sufficient to prevent domination by the wealthy. Being as our economy is a capitalistic one, we must determine whether it can be made into a democracy-supporting economy or not. Under FDR we had reasonable success in controlling wealth distribution by taxation and public works. Today Europeans are doing the same basically through taxation. If we look at wealth accumulation as a threat to democracy, perhaps we can finally get past the plethora of myths running from Horatio Alger to personal wealth as a measure of success. It is useful to note that even at the planetary level James Tobin has proposed, and stimulated a movement, to impose a tax on the immense amount and size of the daily transactions of the global stock and monetary markets. (See http://www.ceedweb.org/iirp/.) This money would be used to redress the radical monetary imbalance on this planet by relieving the abject poverty rampant in so much of the world and providing a stable base for societal development.

I suggest that the preservation and enhancement of democracy can be a unifying focus and rallying point for progressivism, which currently does not seem to have such a unifying concern. The call of democracy broke the power of kings; perhaps it is still powerful enough to break the power of corporations.

Bob Newhard

Clarifying Clinton

The lead article in the October 2007 issue of The Atlantic magazine is devoted to Bill Clinton and his post-presidential carrier of inducing corporations to fund needed social solutions, e.g. AIDS, energy conservation, etc. (The article plus a slide show and interview can be found at http://www.theatlantic.com/doc/200710/clinton-foundation.) Reading the article and watching a video presentation by Clinton did much to clarify for me what has happened to the Democratic Party I once knew as a supporter of Franklin D. Roosevelt. As with many Democrats, I have long known that Clinton and his Democratic Leadership Council had abandoned the people and their needs as the prerequisite and defining purpose of a democracy. Roosevelt was under no illusions about the need to protect citizens from the aggrandizing power of the corporations. It was one of the functions of government to redistribute a portion of the gross national product to the people in the interests of preserving a democracy, which cannot exist in a nation of the rich and the poor. I asked myself how a Democrat could auction off large segments of the publicly owned communication spectrum with no public benefit required. We should have required ample prime time for public affaires such as elections. We should have created an independent network such as the BBC. Everybody knew the media was the problem, but these “Democrats” sold it to the very corporations that were polluting our airwaves with trivia and worse and with no public interest strings attached. This scenario has been repeated time and again by these people, whether it was a health plan that bent over backwards to accommodate the corporations, but still could not satisfy corporate greed, or a welfare program that forced people on welfare to find a job in an obviously declining job market and when those jobs often did not pay a living wage. This is democratic concern for the people?

The article is appropriately headlined “Let’s Make a Deal” on the cover of the magazine. In the article it becomes clear that Clinton views corporations as fundamental and government’s role is to facilitate them as much as possible while extracting whatever quid pro quo it can from them. In 2005 Clinton established the William J. Clinton Foundation (URL http://www.clintonfoundation.org/index.htm) to carry out his vision called the Clinton Global Initiative. As the author of the Atlantic article notes, “Clinton can and certainly does raise money, but he didn’t have enough to endow a major grant-making foundation. What he did have was an ex- presidential bully pulpit, a deep Rolodex, the power to attract attention and talent, and an inkling that those assets might be used to do for public goods something like what entrepreneurs and investment bankers do in the corporate world: midwife new markets or scale up underdeveloped ones.” The author describes the annual, somewhat frenetic, gathering of corporate executives and their flunkies to negotiate what “commitments’ they will make toward improving the world. There is no question that the Foundation does a type of good. Apparently its AIDS initiative was quite successful, but the instrument for doing this good is corporate charity, not government. This is analogous to the Clinton administration’s doing enormous good for the corporations in the hope that the corporations would, in some measure, reciprocate. Robert Reich, Clinton’s first Secretary of Labor, recounts the cold shoulder he got from multinational corporations when he asked for their support in improving labor laws in return for the enormous benefits that the administration had bestowed on them. I believe this charitable approach to dealing with social issues, which Democrats of the FDR period thought the business of government, was endemic to the Clinton administration. That Clinton’s foundation continues in the same vein accounts, I believe, for the friendship between him and the first Prescient Bush who appealed to a thousand lights of charity to solve social problems. This approach implies that the citizens have no right to a decent standard of living, which FDR declared they did.

The charitable approach to dealing with major social issues is, in my judgment, very dangerous. If and as it becomes the norm we lay the groundwork for fascism, which, as Mussolini pointed out, is a fusion of corporations and government. Presidential candidates in the 2008 election should be scrupulously examined for this same approach to government, most notably, Hillary Clinton who is taking large amounts from media mogul Rupert Murdoch.

Robert Newhard

Asymmetrical Warfare Can Easily Segue Into an Asymmetrical Society

It began as an intriguing question. Why, on three occasions, have the world’s superpowers been defeated by small, largely undeveloped, countries? The United States was defeated in Vietnam and has been in its effort to control Iraq. The Russians were defeated in their effort to subdue and control Afghanistan.

I discovered that the United States military has been asking this question ever since the Vietnam defeat. The issue has been studied under the rubric of “asymmetrical warfare.” From what I have been able to discover in an admittedly cursory inquiry the military is relying primarily on technology to address their problems with the kind of guerrilla resistance they have met in Vietnam and Iraq. The consequences of introducing the military and its ever-advancing technology into the environment of the civilian, which is where the terrorist operates, bode ill for mankind. Once the military is introduced into civilian affaires its power can be as easily directed against our own citizens as against any enemy. Unless we are very careful we will wind up letting the military kill democracy under the guise of defending it.

One of the more significant consultants in this area is John Robb who was a mission commander for a counterterrorism unit that worked with Delta Force and Seal Team 6 before becoming the first Internet analyst at Forrester Research and a key architect in the rise of Web logs and RSS. He is writing a book on the logic of terrorism. The following are selections from an article he published in the magazine Fast Company titled “Security: Power to the People.” The full article may be found at http://www.fastcompany.com/magazine/103/essay-security.html

· The end result of this struggle will be a new, more resilient approach to national security, one built not around the state but around private citizens and companies.

· The terrorists have developed the ability to fight nation-states strategically--without weapons of mass destruction. This new method is called "systems disruption," a simple way of attacking the critical networks (electricity, oil, gas, water, communications, and transportation) that underpin modern life. Such disruptions are designed to erode the target state's legitimacy, to drive it to failure by keeping it from providing the services it must deliver in order to command the allegiance of its citizens.

· Security will become a function of where you live and whom you work for, much as health care is allocated already. Wealthy individuals and multinational corporations will be the first to bail out of our collective system, opting instead to hire private military companies, such as Blackwater and Triple Canopy, to protect their homes and facilities and establish a protective perimeter around daily life.

· As for those without the means to build their own defense, they will have to make do with the remains of the national system. They will gravitate to America's cities, where they will be subject to ubiquitous surveillance and marginal or nonexistent services. For the poor, there will be no other refuge.

These conflicts could be looked at as technology versus people encounters. As such, why have technologically deficient people been able to defeat the most technologically advanced militaries on the planet? There are those who still argue that the United States lost in Vietnam because it did not bring all its technological capability to that war, meaning nuclear weaponry. The same could be said of Russia. Understanding that nations have always expected their militaries to use all available resources to win a war, it is impressive that in both Vietnam and Afghanistan both the United States and Russia chose defeat rather than employ nuclear weaponry. It raises the question of whether mankind is finally learning, in a very brutal fashion, that wars are no longer winnable. It also indicates the fudamentally evil decision of the Bush administration to bridge this gap between the acceptable and the unacceptable by undertaking the development of battlefield nuclear devices known as bunker busters to, in effect, “domesticate” the use of nuclear energy as just one more battlefield weapon of modern warfare.

There is, however, another aspect of the world as Robb and the military see it. It is a world disintegrating under the pressure of terrorism, to be followed, as that deterioration progresses, by gangs and other smaller groups. I suggest this process would virtually duplicate that which followed the fall of the Roman Empire under pressure from the barbarian invasions. As the security provided by the Roman Empire declined people fled to the estates of local nobility for protection and from this arose the feudal system that dominated Europe for a thousand years. This current scenario by Robb differs in one major regard because of the vastly increased level of technology brought to this disintegrative process. This raises the issue, indeed the specter, of mankind being unable to create an ethos based on its commonality and being backed into a world in which conflict, violence and fear, complemented by nuclear and biological weaponry, dominates. As society fragments under the impact of terrorism, as the powers that be increasingly construe protest as terrorism, as the military increasingly intervenes in domestic protest and as technology is increasingly pitted against individual citizens, it will become progressively clear that those who would build fences dividing humanity invite a world of conflict.

Bob Newhard

When Better is Not Good Enough

Bill Clinton and the DLC democrats have made a mantra of making things “better”, which has allowed them great latitude for obfuscation. The question is not whether things can be made better. The issue is can they be made good enough. Reality determines whether policy and action are good enough, not slight improvements that fail to deal with the necessities.

This thought came to mind as I read of Hillary Clinton urging the removal of the puppet president of Iraq who was supposed to bail this country out of the transparently stupid attack on Iraq and now that the situation has devolved into the chaos knowledgeable people predicted, she and other Democrats who voted for this immoral insanity are trying to pin the blame on their chosen Iraqi instead of themselves. Why?: To maintain their electability. This is absolutely disgusting, when the carnage they did not have the courage to resist in the first place is now to be blamed on the Iraqis themselves. If this timid, weasel, mentality is to reside in the White House as of 2009, the great and tough decisions that are needed to direct this country away from the narcissistic self interest that has characterized it over the last forty years, including the whole notion of being a superpower, will not be made. We badly need an administration that can create a new vision for this country and this planet in which we use our resources to solve the massive problems humanity faces instead of exacerbating them. We must think real world when we consider these candidates. Forget accepting electability as the fundamental criterion in evaluating candidates. That criterion leads all too easily to shallowness, irrelevance and the disasters they create in the real world. Create electability by demanding an end to hype and deception. Demand that the real world be the focus of politics, not winning an election when there is no evidence the winner has any grasp of mankind’s dire needs and even less a grasp on what needs to be done to address those needs. We must hold our elected officials accountable, but we must also hold ourselves accountable first by insuring the fundamental importance of our demands. To do this we need to think rigorously and thoroughly about what this world and this nation need most.

Bob Newhard

A Conundrum?

Why is it that at one and the same time our society has had the largest religious revival in over two hundred years and has at the same time the most bellicose, corrupt and ideologically rigid government in its history? It is generally assumed that religion and morality are intimately connected such that, for example, any group given the task of investigating social morality almost always includes a member of the clergy. I suggest this congruity is not coincidental.

The extent of religious enthusiasm is not only greater than the Great Awakening of the 1730’s it is, especially considering the vastly extended range of human knowledge and awareness of other societies, more deliberately ant-intellectual as evidenced by creationism and its efforts to suborn science with politics amply illustrate. It is, like its 18^th century predecessor essentially a fundamentalist movement. As such it:

· is suing the University of California to require that institution to give credit for its courses. The new 25 million dollar Creation Museum in Kentucky recently opened to overflowing crowds.

· is more bellicose in its willingness to unleash the world’s largest military establishment on the citizens of small nations. One of its favorite hymns, Onward Christian Soldiers, expresses the latent militarism in Christianity. It has not shied form the slaughter of thousands of innocent civilians and their children.

· has, through its political leaders, for the first time in American history, formally espoused and practiced heinous forms of torture.

· has instigated and tolerated the destruction of our fundamental liberties and rights.

· has engendered the largest per capita prison population of any developed country in the world, largely due to its paranoia about and punishment response to drug use. One wonders per Karl Marx, if religion sees competition from drugs.

· has used millions of taxpayer funds to enrich itself.

· has corrupted the language that our society depends upon for communication with the intent to delude our citizens. Notice how they have conflated the common meaning of the word theory with the rigorous use of that term in science.

· would demolish abortion and birth control in spite of a human population growth that now threatens human survival, not to mention a decent quality of life.

In short they care nothing for mankind, except to dominate it. Note the Christian Dominionism movement, that volatile mix of religion and politics, which can so easily end in Fascism.

To the above charges, and there are many more, some may say that I am myself conflating fundamentalism with other kinds of religion. My reply is that when an institution puts reason first, rather than faith, belief or spiritualism, I shall cease calling it a religion. Faith has no inherent test for relevance and hence can be attached to anything – and that is where the trouble begins.

One of the fundamental reasons religion can have such deleterious consequences is that it deals in certainties when regarding the natural world and absolutes when dealing with morality. Because the natural world is highly variable and less than adequately known, reality defeats religion’s certainty repeatedly, often with disastrous results as exemplified by the refusal to treat AIDS as a disease rather than God’s punishment of evil doers. Similarly, because humans are very complex entities dealing with a complex reality and other complex humans, the rigidity that religion’s absolutes introduce into human value systems not infrequently leads to catastrophic results. People are currently being slaughtered by the thousands because of the inability of Islam’s various factions to accept each other’s humanity, not to mention G. W. Bush’s declared guidance from his god and the slaughter that has entailed.

Thus it is that when mankind feels most certain of its moral bearings it commits its most horrendous crimes. When will we demand of religion that, like science, it realize its own limitations and allow mankind to approach the natural world and each other with the same tentative, evidence searching, posture?

Bob Newhard