by Michael Doliner
(Swans - December 15, 2008) The United States prides itself on being "a nation of laws, not men." The foundation of all these laws is the Constitution, a document whose purpose is to set up a system of government consisting of checks and balances to protect against usurpation. The Founding Fathers assumed that all men are essentially self interested, but that by dividing the governmental power among three branches the self interest of each will check that of the others and something like a balanced good will prevail for all. It is upon this set of laws, the Constitution, that any further laws must be measured, and if they are found unconstitutional they are to be overthrown. The Constitution is written because they thought that what is written stands firm and can be set up as a reference with which to compare human behavior and judge it. Written law, we believe, is objective, whereas men are selfish and therefore subjective, and custom is variable.
Laws must carry a punishment for their violation, and in the case of the Constitution a remedy for usurpation. Without punishment a law is null. For usurpation by the executive (or judiciary) the remedy is impeachment. Now it seems to many, myself included, that the Bush administration usurped the authority of the Congress in the prosecution of his "war on terror." That Bush persuaded the Congress to underwrite his war with bogus information is, in the opinion of many, a "high crime," tantamount to treason and grounds for impeachment. Yet he wasn't impeached, most say because he couldn't have been convicted. John Dean writes, "On my bookshelf sit half a dozen books making the case for Bush's impeachment. I myself have no doubt that Bush has, in fact, committed impeachable offenses, and that for each Bush 'high crime and misdemeanor,' Cheney's culpability is ten or twenty times greater." (1) Nevertheless he would have those who wanted to impeach Bush and Cheney turn their attention to lesser more convictable fish. But even this was not done. Thus, clearly, the Constitution has failed in its primary mission, to provide a system of checks and balances that would prevent usurpation.
As serious as this is, the Bush administration damaged the Constitution in a more serious way. Here is a piece from The San Francisco Chronicle quoting Alberto Gonzales, then the attorney general: "Gonzales acknowledged that the Constitution declares 'habeas corpus shall not be suspended unless ... in cases of rebellion or invasion the public safety may require it.' But he insisted that 'there is no express grant of habeas in the Constitution.'" (2) Several law professors met this claim with astonishment, for it is hard to see how the quotation above could mean anything but that the Constitution does protect habeas corpus. Arlen Specter accused Gonzales of violating common sense. Nevertheless, he got away with it. John Yoo, then the general counsel to the president and now a law professor at UC Berkeley, also challenged what until then had been a common understanding about the Constitution. "Yoo, for instance, claims that the Supreme Court in Boumediene allows 'an alien who was captured fighting against the U.S. to use our courts to challenge his detention.' But huge numbers of detainees in U.S. custody weren't 'captured fighting against the U.S.' at all. Many were taken from their homes. Others were just snatched off the street while engaged in the most mundane activities. Still others were abducted while in airports or at work." (3) He claimed these facts allowed the government to deny these detainees this right.
There is a famous little apocryphal dialog between a detective and a hardened criminal:
Criminal: I didn't do it.
Detective: Someone saw you.
C: It was another guy who looked like me.
D: Someone identified you by name.
C: It was another guy who looked like me who has the same name.
D: We found your fingerprints on the murder weapon.
C: It was another guy who looks like me with the same name and the same fingerprints.
If Mr. Yoo has a point then so does this criminal. Although the criminal might be pointing to a remote (though incalculable), but non-zero, probability, (a shadow of a doubt?), Yoo is pointing to irrelevant differences where it is a question of the right to trial. For it is clear that the Supreme Court intended that the right to trial be preserved. Technically, Yoo might as well have argued that the Supreme Court decision applies to no one, since every soldier stops fighting just before he is captured at the very latest. So no one is captured while fighting. The justices who wrote the decision thought they said what they meant and although we all know what those laws meant, we allow Yoo and Gonzales to argue otherwise before Congress. Instead we should have pelted them with rotten tomatoes, the only reasonable punishment as far as I can see.
Subverting laws by distorting language is not a new idea. Lawyers, who by nature love to argue, are more than happy to babble stunning nonsense. Their willingness to consider nonsense sense, and in pairs, or, counting the judge, triplets, that other less combative souls all by themselves know is nonsense, makes nonsense plausible, for it outpolls sense. Making distinctions where none were intended, using slippery slope arguments, and redefining words in a law are just some of the clever techniques lawyers use. The new designation, "independent contractor," to replace "employee" is a technique that has does yeoman service in skirting labor laws. Slippery slope arguments about "gateway drugs" have persuaded lawmakers to enact harsh punishments against marijuana use. Bush avoided the Geneva Convention restrictions on the treatment of prisoners by renaming "prisoners of war" "enemy combatants." A few legal niceties and definitions make it plausible to the legal mind. Once done, you can torture to your hearts content and, as a bonus, provide new verbiage for lawyers to chew in endless debates. What is different here is that these men subverted the Constitution.
Unpunished violations of the Constitution prove that the Constitution has failed of its mission -- to prevent, through checks and balances, the usurpation of power. It may be that a benign and well-intentioned Barak Obama will not use the new powers the Bush administration took for the presidency, but that would only prove the Founding Fathers' assumption of human selfishness was false and the Constitution superfluous. For it was the Constitution, not human good will, that was supposed to protect us from usurpation. But the actions of Gonzales, Yoo, and others destroy not only the present Constitution, but any future constitution as well. This is especially so now that Yoo's appointment at UC Berkeley has sanctioned his thinking. In a respected University he is teaching others what law is. That these men are considered rational demonstrates the futility of hoping that written words will restrict human behavior. There will always be a loophole or a distortion that someone who wants to do something can use to justify his actions. If one person insists that he is following a rule and another denies it the argument must be decided by custom, and it is the customary use of language that Yoo and Gonzales corrupt. For no matter what a law proscribes, actions, which can always be renamed, will not be restricted.
With the Constitution now patently unable to check the power of the president it is effectively abrogated. The unchecked power is not really that of the president but of what the Founding Fathers would call a "faction." Manipulating the strings of a puppet president is financial capital. Free market ideology, used to justify deregulation, exporting of industry to low wage countries, union busting, the gutting of environmental protections, and much else, conceals an ongoing class war now essentially won by the rich. For free market ideology boils down to the claim that capital, not labor as Marx would have it, is the productive element. Cloaked in free market ideology financial capital now all but controls the government. Although Congress appears to be too obsequious to challenge and impeach the president, in truth they don't challenge him because they don't want to. For he and they all represent Finance and differ from each other only to the extent that different factions of the rich have different interests. They give their loyalty to the rich not only because enormous sums of money are necessary to run a political campaign, but also because congressmen expect to profit personally, if indirectly, from their offices. Their interests lie not in their offices, but in what their offices can bring. As Gordon Prather puts it, it is the "Best Congress Money Can Buy."
The Constitution, although it no longer serves its original purpose of protecting the country from tyranny, does now serve the rich in two obvious important ways. First, it offers a justification for the imposition of taxes. Were the rich financiers exposed as merely a powerful gang, people might be more inclined to try to dodge the impositions of what has no more legitimacy than a criminal protection racket. The Constitution also serves the rich by inspiring young and mostly poor men and women to join the military. Cajoling them into patriotic fervor to fight to defend the United States of America will be easier if the Constitution remains in place. They are usually too ignorant to understand just how little the Constitution now means, though they learn pretty fast in the war zone.
As Hannah Arendt has pointed out, the United States is the unique example of a state founded through a willful act. That act was the writing of the Constitution. Were the Constitution to be actually eliminated the United States would likely break up, for there is nothing else really holding it together. By leaving the Constitution in place, even though it no longer has the force of law, the rich can further their rule.
Having won the long class war, financial capitalism finds itself faced with the contradictions Marx predicted that they would. By the nineteen seventies industrial capitalism found itself with the classic capitalist problem, overcapacity. (4) The world could build more cars, televisions, and, in general, things, than it could consume. Savage competition ate into profit margins and everyone looked to cut costs in the only place they could, on labor. Betrayal of New Deal protections, labor leaders throwing in their lot with the Democratic Party, and globalization started the ever accelerating race to the bottom. Even so, fierce competition guaranteed that industrial capitalism would bring fewer and fewer returns as profit margins narrowed. Lending money became more profitable than making things. Over a period of time financial capitalism grew far larger than industrial capitalism. Now, at the very moment of its complete victory, the debt crisis reveals not only can one no longer make money through lending it but that the whole house of cards seems to be falling down.
When industrialists reduce labor costs they also reduce demand, thus exacerbating the problem of overcapacity. Eventually, the economy crashes. To extend the economy's life, financial capitalism exploits an additional resource, time. We can buy "on time," mortgaging our future to maintain demand in the present. It seems as if this could go on forever, for time is infinite, but unfortunately, the distant future is far less valuable than the immediate future. I might agree to be paid tomorrow, but not in a thousand years. Also, the futures of different people have different values depending on how much their time is worth; that is, what their income is and can be expected to be. As wages decline so does the value of the laborer's future. As with all other resources time as money is finite and is now exhausted.
So although the financial capitalists have won the class war, theirs is a Pyrrhic victory, to say the least. The over-mortgaged futures of the ever poorer lower and middle classes can no longer provide close to the demand that the world's huge productive capacity needs to maintain even the sliver of a profit, and capitalism is collapsing. Capitalism as we have known it won't be coming back. The "debt crisis" has effectively put an end to financial capitalism and with it industrial capitalism by, so to speak, devaluing the future. As can be seen by the collapsing oil markets, demand has quickly contracted. Since we have already mortgaged the future to the hilt, devaluing it has made the future worth less than the mortgage upon it. The future is, in real estate parlance, under water. People have the choice of having no future or of repudiating the mortgage their devalued future can never pay, and since so many choose or are forced to do the latter, the future has become almost worthless.
Financiers now control most of the money and the government, but the game they have been playing is over. What are they going to do with their power? The bailouts suggest that they are going to take the money and run. The bailouts mortgage the future of the government, the last consumer standing, and therefore indirectly, the country as a whole. It is the last move of financial capitalism. When the government defaults the country is insolvent, its future will have been mortgaged for more than it is worth. Or they might just print a lot of new money to pay the debt. In either case the dollar will become worthless and the government must fall.
If the rich make off with the booty, as seems to be happening, a large portion of the population will be left destitute, homeless, and hungry. Civil disturbance is certain, and it is clear that the government has prepared for it with a massive prison system. The implications are, of course, frightful, but given the unpunished crimes the U.S. committed elsewhere, no one can rule them out as too horrible and therefore unimaginable. Put simply, capitalism with full or nearly full employment with most Americans consuming as they did up until recently is no longer "on the table." A large portion of the population is hors de combat. The rich, assuming they want to continue as they have been, and every indication is that they do, must find something to do with the "surplus" population. Prisons will not be enough, for even prisoners consume a lot of resources. Yes, they have to be thinking of killing us, a huge anti-terror campaign in the United States itself. (5)
But would it work? We can see just how well the invasion of Iraq has worked. It is too late to mince words. Were the government to impose a system of extermination camps upon the United States in an attempt to suppress a large disgruntled or enraged population it would not work. The economy, whatever was left of it, would collapse. Americans are extremely docile people, and have gone along with outrageous limitations on their freedoms, but desperate people do desperate things. Crime rings, in addition to those already active, started by the very young and unindoctrinated, would inevitably form. In addition to the usual crime start-up businesses, drugs and sex slavery, they would prey upon the far flung and vulnerable infrastructure of a highly industrialized country. Pipelines and the electric grid cross vast remote areas and are easy to plunder. Tiny charges can bring down high tension wires, and on days with large demand, cause blackouts of vast areas, making crime much easier. Blackmail and kidnapping would become thriving businesses, as they have in other collapsing economies. Trucks that carry most of our goods travel long distances on remote highways and would be easy to waylay. With a little more organization dams would become vulnerable hostages for damage to them would be permanent. Unless heavily protected every gas station, food store, drug store, and gun shop would be a target. Resources needed to protect all this would be vast. Crime is not a game of good guys versus bad guys. Criminals pay off police, politicians, and military officers to look the other way or even aid and abet. In a case like this money -- not high flown language -- talks, and I assume no one thinks these bozos are incorruptible. Police forces would become part of the criminal element. The rich might have their own private armies, but they would have to pay them more than their pampered hides would be worth to a kidnapper. For the henchman's loyalty will only be bought. In such a world those most likely to survive would be mafia warlords, not the present Wall Street "masters of the universe." The rich but essentially non-violent bankers who are so successful in the present structure would not survive this change to a more brutal, feudal system.
So what is the alternative? The poor have lost the class war, but the class war is capitalism's trap. When the poor can no longer consume, overproduction destroys the rich as well. The hope that the poor, the working class or what have you, will organize politically and force the rich to give up some of the booty is a vain hope. The system is collapsing far too fast for that. And in any case it would only reinvigorate the class war. The only hope is that the rich recognize that they too will sink along with the poor if they continue to try to pursue business as usual. If the rich try to make off with all the booty they will be left in large compounds with private armies waiting for the commanders of these private armies to discover that the former Masters of the Universe are superfluous. If a former investment banker is lucky, his own security chief will not torture him for his passwords: he will just kill him.
The only hope is that the rich recognize the trap of the class war and end it. What is coming will not be friendly to the haute bourgeoisie. To be sure, the needed change would require more than a revolution. As long as we keep hoping to "reinvigorate the economy" and "restore the Constitution" we will continue to plunge towards our doom. The world we have known is ending. The only question is whether human beings can see clearly what is happening and act to create something new. For it is entirely possible that all that will be left is a few warlords and their bands, or nothing human at all.
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