The Back Alley Archives

Lycurgus of Athens said that. And he was right.

The Greeks would banish a man for false swearing. Among the Germans, Anglo-Saxons, and Vikings, “oath-breaker” was the worst name imaginable. That tradition has passed down to us in the law of perjury, through which society punishes those who swear falsely, even those whose testimony is compelled. You can’t get out of the oath either. Try telling a court that you will not affirm your testimony is truthful, and see what happens.

But there is one oath which is routinely disregarded. The oath of office:

I do solemnly swear (affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. (So help me God.)

The only part of that oath which has meaning today is the phrase “against all enemies, foreign and domestic,” and even there, as applied what it really means is:

“I will use my office to wage and support undeclared war against foreigners deemed hostile to America’s interests, even and especially economic interests, and to punish my political opponents with the sanction of whatever laws I believe I can convince the public to support, by pretext if necessary.”

It wasn’t always so. There are many reasons that the power of federal courts has grown so over the past century, but one is that Congressmen, Senators, and Presidents no longer think about the Constitution. Once they actually debated the Constitution, and took its interpretation seriously. They’d cite the Constitution and quote it, in argument, debate, and in veto proclamations. Jefferson ran against Adams complaining that the Alien and Sedition Acts were explicitly unconstitutional, which they were.

Now I’m not a pollyanna. I’m well aware that much of what 19th century politicians said about the Constitution was window-dressing for their real interests and intent. But one can read the arguments of Clay, Webster, and Calhoun and discern, even at this late date, that these men took the Constitution seriously even if they differed on what it meant.

And if they were proven wrong by a judicial decision, or politics, they would try to amend the Constitution. If the Civil War had started in 1961 instead of 1861, the thirteenth, fourteenth, and fifteenth amendments would never have been written. Congress simply would have passed the “Equality Needs Freedom! Really! And Now! ‘Cause How Is Slaves’ Eventual Manumission Even Now Taboo?” Act, or the ENFRANCHISEMENT Act of 1967 for short.

Contrast that with the modern era. George Bush, one of the most cynical politicians of our age, signed the McCain-Feingold political speech suppression act into law despite his reported belief that it was unconstitutional, because he knew (hoped) that the Supreme Court would invalidate it.

In other words, that the Supreme Court would uphold its oath, even if he didn’t.

How else can we explain the passage of the USA-PATRIOT act and its sequels? Bush of course supported it, wrongly, but are we to believe that in the United States Senate only Russ Feingold had serious constitutional concerns about it? Of course not. Many Senators, not all Democrats, voted in favor of it without reading it despite those reservations, because they are cowards.

And because they didn’t take their oaths seriously.

And it goes on today. The Combating Online Infringement and Counterfeits Act, which just passed the Senate Judiciary Committee (remember – that’s where they put the lawyers, Senators of high legal learning and principle like Larry “Wide Stance” Craig and John “I’m Not Her Baby Daddy” Edwards) unanimously, gives the Attorney General power to order any American web site shut down based on his decision that it violates copyright law. No trial. No jury.

Are we supposed to believe that each and every Senator voting for this bill believes it doesn’t infringe 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.

If they’re thinking about the Fifth Amendment at all, and they’re probably not, they’re thinking what Bush thought: “Fuck it, the Supreme Court will fix it.”

More likely they’re just bought and paid for: stooges for Hollywood, Sony Records, and Electronic Arts.

So what is to be done? Should anything be done?

Many of you will say “no.” You’re happy to live in a country where politicians cater to the mob, or their paymasters in Big Oil, Big Pharma, Big Music, Big Software, Big Labor, Big Retirement, Big Prison-Industrial Complex, and … Jesus wept! … Big Weather, without regard for a piece of paper that was written by a bunch of slave-owning DWMs a thousand years ago, supposedly to protect your rights. But what are rights anyway? Aren’t they just social constructs, devoid of any meaning except that which the zeitgeist chooses to give them?

And anyway, if the worst happens, and an absolutely shitty law is passed or the government commits a horrible injustice, we can count on five ugly old white men, two ugly old white women, one ugly old black man, and one Wise Latina Woman to save the day.

Or we could fine the bastards. A modest proposal:

1% of their income for the year the act was passed, from all sources (because some would complain only rich people would run for Congress in the face of such a penalty), for each act of Congress deemed unconstitutional, in significant part, by a federal court. Refunded by the federal treasury if the decision is reversed by a higher court. The fine, like federal tax liens and like federal student loans, would not be dischargeable by bankruptcy. The President would get a pass if he vetoed a bill later found unconstitutional, assuming Congress overrode his veto.

Oh it would take a Constitutional amendment, and those are out of fashion. And it might need some tinkering around the edges: is 1% enough? Is it too much? And what does “significant part” mean?

I’m sure that could all be worked out in the Constitutional Convention, or in comments if you prefer.