Rebalancing Power

by Milo Clark

August 2, 2004   


(Swans - August 2, 2004)  Western history is marked by successions of events involved with balancing of power.

The Roman Empire went through power shifts between autocratic Caesars and Republican Senate.

In England, working its way to Great Britain, royal arrogance was checked several times. The Magna Carta of 1215 marked one instance when absolutist assertions of royal power were undercut by aristocrats, nobles, demanding and getting a piece of the action.

The Magna Carta forms a key foundation of English Common Law which, in turn, is a key foundation of American law. The Writ of Habeas Corpus takes form here. Habeas Corpus means that someone held in custody must be brought before a court in a timely fashion, charged with a crime and accorded due process of law. Habeas Corpus is guaranteed by the US Constitution and may be suspended only in case of rebellion or invasion.

Through successions of such challenges, Great Britain today is said to be under the Rule of Law. That is, people may challenge authority through court actions based in a history of legal precedents. The British parliamentary system is, in significant ways, closer to a democracy than exists within republican U. S. A. (Republican, in this sense, does not refer to a political party of that name, rather to a system of representative governance as originally described in the US Constitution and its subsequent amendments.)

The US System, in itself, represents reaction to perceived royal excesses of England's George III.

French history shows parallel instances wherein royal excesses led to reactions. The French Revolution of 1789 sought to replace absolute royal power with a more popular regime which, in turn, imploded into Napoleonic excesses succeeded by royal restorations which then gradually evolved into today's Republic of France now largely governed by Rule of Law -- Code Napoleon, in this case.

Rule of Law, whatever code, is an absolutely key component of legal systems deemed responsive to popular will through elections and representation in legislatures. Parliamentary systems provide for a prime minister selected from the majority party or coalition established by some reasonable election process based in a system open to the general population. As a prime minister serves at the will of parliament, a legislative vote of No Confidence requires a new election within a relatively short time period.

The US Constitution, framed by men of property who feared popular processes, makes no provision for No Confidence in the Executive. Turnover of government is restricted to periodic elections which, in the case of executive function, is further constrained with the Electoral College. The Electoral College is a buffer subject to other considerations than popular majorities or pluralities.

While the U.S. operates under derivations of English Common Law, the Constitutional structures of government are based in a system of checks and balances given three forms: Congress (legislature), Executive, and Supreme Court. Given a base in Rule of Law, the ultimate arbiter is the Supreme Court. The Founders assumed that Justices of the Supreme Court would in all cases, place Rule of Law over politics. That US history reveals instances wherein this assumption failed doesn't necessarily give lie to the principle.

Over time, lawyers who, above all else, are charged to be Officers of the Court; that is, upholders of the Rule of Law, have come to dominate Congress, the legislative branch, the law makers. Lawyers are also found strongly represented in the Executive. Supreme Court Justices, while not required to be lawyers by the Constitution, usually are law graduates who have practiced law and served in lower courts.

Issues defining the US Civil War of 1860-1865 are rooted in a power struggle between those who believed the powers of the states to be paramount and those who believed federal power, that is, centralized power, should dominate. Slavery was, as a matter of fact, an ancillary issue although later given major status in mytho-history.

With federal (Union) victory in 1865, power was consolidated in the Executive. US history since then has seen the issue of power and checks and balances go through many phases culminating today in an Executive claiming to be and acting as if paramount.

Rule of Law is presently compromised in many ways, not just in the infamous Patriot Act pushed through a docile and shocked Congress within days of the 9/11 attacks. The Patriot Act challenges basic concepts embodied in the Rule of Law, such as Habeas Corpus.

The detainees held in Guantánamo along with others held in Afghanistan and Iraq are claimed not to be subject to either US or international law, especially the four Geneva Conventions governing prisoners of war. The tortures perpetrated on these people and others taken into custody by recent US actions in Iraq as demonstrated by the events at Abu Ghraib prison in Baghdad are claimed to be above law and within the powers of a president acting as Commander in Chief.

Recent Supreme Court decisions related to individuals scooped up under cover of the War on Terror attempt to check the excesses of an Executive installed by a partisan act of the same Justices in 2000. In these decisions, they said, "Whoa!" The question remaining for time to reveal is whether "Whoa!" means slow down a bit or stop.

Earlier reactions embedded in US history include Woodrow Wilson being humbled when the US Senate dominated by Republican Henry Cabot Lodge refused to ratify the League of Nations following WWI (1914-1918). There are those who believe that this decision along with later protectionist legislation set the stage for WWII (1939-1945).

Franklin Delano Roosevelt (1932-1945) was humbled by Congressional and Supreme Court denials of key components of his programs designed to combat the Great Depression of the 1930s.

William Jefferson Clinton (1992-2000) was humbled by Congressional defeat of his universal health care initiatives as well as the attempted impeachment over a skewed definition of what may constitute a sexual act with a consenting partner.

In passing, it may be significant that each instance cited involved members of Congress who belonged to the Republican Party.

I am among those who argue strongly that the incumbent president needs humbling under Rule of Law. The litanies of his excesses have been detailed many ways and many times in many forms. (1)

The rampant arrogations of executive power succeeding installation of George II have been cheered by partisan dominance of Congress.

Legal opinions supporting these arrogations of power crafted by platoons of lawyer sycophants embolden ever broader breaches, stretching definitions of hypocrisy to their limits.

Allegedly balancing roles of major media succumb to pandering propaganda.

Barons of greed in corporate and financial circles trip over each other in bidding wars to finance the 2004 election campaign of George II.

Yet, looking at history, each major instance of redressing power imbalance has been led by elites of the time.

Presently, in the U.S.A., with increasingly rare exceptions, offices in all branches of governments from local to federal are held by relatively affluent elitists. It is no longer rare for a candidate to finance his or her campaign. These candidates may then claim to be free of campaign contribution abuses. With this financial independence break reliance on and submission to campaign donors?

Can office holders break the webs of ill-examined assumptions underlying their roles and social connections or ambitions?

Can financial independence of office holders, from president on down, lead to redress of power imbalances in the U.S.A.?

Media barons such as Rupert Murdoch are older men. Will their sons and heirs continue to support executive arrogance of power?

Will Rule of Law, assertions of civil authority based in law, crack open the minds of judges given office by partisan processes?

George II's example as a financially independent president is not encouraging. Yet, his major opponent is even more independent financially. Will scions of wealth and elitists once again lead in restoring Rule of Law and operative checks and balances?

Only regime change in Washington D. C. will answer that question.

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1.  In two recent editions of The New York Review of Books, June 24 and July 15, detailed articles penetrate key issues.

In "Unfit to Print," Michael Massing dissects the sophistries and omissions of America's major media, especially The Washington Post and The New York Times, dealing with Iraq in particular. Weak stories about the buildup to war were routinely buried in inside pages, if covered at all. Reporters and correspondents were "embedded" in American military units, inhibited by personal fear, dependent on supplied translators and fed on press releases forwarded as news. Unable to understand Arabic, they passed on what they were told quite ignorant of what may have been actuality. In contrast, al-Jazeera, al-Arabiya and other Arabic news services had reporters and camera crews on site. European news organizations such as BBC, The Guardian, The Financial Times had Arabic speakers on staff with long experience in the region. Agencies such as Reuters, Associated Press and Agence France-Presse have a web of correspondents through the area. Little if any of this reporting makes it into US media.

Mark Danner, in "The Logic of Torture" walks up and down the ladders of power to draft a chilling case showing all too concretely that none of what has been opened to investigation can be passed on to "people at the very bottom in one prison." "The Logic of Torture" is the second article on the subject by Danner. His first, "Torture and Truth" is in the June 10th New York Review of Books.

Anthony Lewis on July 15th offers "Making Torture Legal" He discusses legal opinions on which the Bush administration bases its case for torture. Lewis gives websites for two of those opinions which don't work so I have tracked them down in the two following URLs.

http://www.washingtonpost.com/wp-dyn/articles/A62516-2004Jun22.html and http://news.findlaw.com/wp/docs/torture/30603wgrpt.html.

Now you know why my daily newspaper is The Financial Times. In addition to The New York Review of Books I also get The London Review of Books. Doonesbury cartoons recently took on Rupert Murdoch and the skewing of his Fox networks.  (back)

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Published August 2, 2004
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