Under Trump, key portions of the constitution will definitely be suspended…

…because the US has been operating outside of the norms of the Anglo-American tradition of the rule of law since at least 2001

A tale of farewell wisdom

George Washington and Dwight Eisenhower gave the two best presidential farewell addresses. Eisenhower warned us about the military-industrial complex. Washington warned us about political parties and foreign entanglements.

Washington wanted to:

“warn you in the most solemn manner against the baneful effects of the spirit of party generally… The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.”

The conventional wisdom is that the Founding Fathers’ hostility to the notion of political parties was somewhat elitist, that the “best” people of society should sort things out without whipping up groups of masses against each other. Washington and his generation probably did fail to see that in a winner-take-all election a system of two parties (or in a system of proportional representative government, more parties) is somewhat natural and not necessarily inherently evil.

On a deeper level, Washington was right that if party is ALL that matters in politics, if society swings back and forth between two factions, if we have nothing but factions squabbling over spoils with no substance for the people at large beyond the coalitions of insiders behind the factions, the people will become hostile to the process. Then, a single individual can step forward and become a dictator. The dynamic of meaningless party vendettas and the appeal of a strong man to end the squabbling, as Washington described the situation, was on display in 2016. Washington was right about the danger of hyper-partisanship leading to undemocratic government.

Hyper-partisanship and the illusion of choice

Oddly, America is plagued both by hyper-partisanship and the illusion of choice between parties. For 60 to 70 percent of the public, including real independents and non-voters, the two parties are equally terrible. For the 30 to 40 percent of kool-aid drinking partisans, Democrat versus Republican is tantamount to good versus evil, traitors and racists. The difference between the partisans and the disillusioned majority is that the partisans pay attention to and believe the mainstream media.

Many people, maybe most, can see that the Democrats and Republicans basically agree on all the important issues facing the country and offer no real choice. Both parties are for endless war and empire. Both parties are funded by insurance companies and financial service companies to make sure banking regulation and healthcare, among other issues, work out to favor the elites. Both parties think international trade deals exist only to make multinational corporations more rich and powerful. TARP, NAFTA, TPP, NSA, CIA: both parties obey the same masters, multinational corporation, banks, oligarchs and the Deep State.

The one-party wall fell in 1989. When will the two-party wall fall?

Both parties literally take money from the same people. The seamless transition from Bush to Obama in terms of TARP funding (taking care of banker friends) and military operations (empire and war) should have tipped us all off on the fact that his election stuff is for suckers.

I often say, “If Lenin had set up the Soviet Union as a two-party state instead of a one-party state, the USSR would still be up and running.”

They could have had a “FOX Pravda” and a “CNN Pravda” and two people, each from a different party of state communism ideologues, argue vehemently on TV and the Soviet people never would have noticed they didn’t live in a democracy.

Even though there is no real difference between Democrats and Republicans, the two factions contest each other in presidential elections, in congress and the Supreme Court. Although we talk about “conservatives” and “liberals” on the court, they are really no different than congress people and are partisan operatives, in general. We really have Democrats and Republicans on the court. And, like their counterparts in congress, the judges disagree on abortion and gun control but agree on corporate domination of politics and do not question the imperial, endless war presidency.

Factions, factions everywhere but not a drop of truth

We’re supposed to have a separation of powers, but all three parts of the government are dominated by the same two parties. If one party gets control of all three branches, then that party or faction can ignore the other faction.

Washington was worried about that possibility. Also, as the factions worry about fighting each other in the three branches, the interest of the people are completely ignored. Frustrated with the log jam, the people will back a dictator.

If we are counting on the parties and the courts to step in, the constitution is done: stick a fork in it

Trump is in flagrant violation of the emoluments clause. In 2011, Jay D. Wexler, a law professor at Boston University, published “The Odd Clauses,” a book about the Constitution’s more obscure provisions. He said such obscurity could be impermanent, as the recent attention to to Emoluments Clause demonstrates.

“I’ve seen over and over how parts of the Constitution that were considered vestigial or irrelevant for decades or more can suddenly resurface and take on enormous importance with a quick change of events… The framers were prescient men who created a government that could withstand the worst of human foibles — corruption, vindictiveness, the thirst for tyranny — and wrote a Constitution to combat those foibles in many of their forms, not all of which will always be present, but which emerge in different guises in different eras.”

Trump’s ventures include multimillion-dollar real estate arrangements — with Trump’s companies either as a full owner or a “branding” partner — in Ireland and Uruguay. The Bank of China is a tenant in Trump Tower and a lender for another building in Midtown Manhattan where Mr. Trump has a significant partnership interest.

Here is the clause:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Article I, Section 9, Clause 8

No doubt, Trump is violating his clause of the constitution. But that’s not the only clause in the document. What about Article I, Section 8, Clause 11 of the U.S. Constitution?

The Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

When did congress authorize Obama to overthrow Gaddafi? Obama authorized the death of Abdulrahman al-Awlaki, a 16-year old American citizen, born in Denver. Abdulrahman was killed in a U.S. drone strike in Yemen on October 14, 2011. The killing violated the right to due process under the Fifth Amendment to the Constitution, the prohibition on unreasonable seizures under the Fourth Amendment, and, with respect to his father, Anwar Al-Aulaqi, the ban on extrajudicial death warrants imposed by the Constitution’s Bill of Attainder Clause. The killings also violated international law, which is incorporated through the Constitution, as you can read in the complaint linked above from the ACLU.

War or murder?

And, here’s the kicker, either the killing was an act or war or murder. If it was an act of war, when did congress authorize the war?

If you are worried about Trump getting out of control as president, indict Obama for the murder of Abdulrahman al-Awlaki and extradite George W. Bush to Italy for the kidnapping and torture of Hassan Mustafa Osama Nasr (aka Abu Omar) on 17 February 2003. That’ll set Trump on the straight and narrow and restore American rule of law along the way. You can be president without breaking the law if you want to.

Obama trashed the war powers provision of the constitution by engaging in illegal acts in Libya, Syria, Pakistan, Yemen, Somalia, Sudan, Iraq and Afghanistan without congressional approval, including actions that seem to be premeditated murder with no oversight, with no public presentation of evidence of wrong doing, when the individual in question, a minor and American citizen in one case, posed no imminent danger to anyone, as he was in a restaurant 4000 miles away from the United States.

If the constitution is worth anything, the government is not supposed to be in your business without a warrant and probable cause

Now, let’s consider the Fourth Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Note the word “papers.” Email is digital paper. Yet, thanks to Edward Snowden, we know the NSA was routinely storing all of our email without a warrant. NSA employees were abusing their power to read the emails of their spouses and exes.

Obama promised to stop this trashing of the Fourth Amendment. But he didn’t. The CIA, as we now know through the Wikileaks Vault 7 release, was deliberating leaving Apple and Samsung devices unsecure, or paying for insecurities and back doors to be left open in software, or installing malware on devices themselves. Here is a summary.

The constitution says our word is bond; but no, Uncle Sam’s signature don’t mean shit; the USA lies in the world’s face like a petty swindler

Article II, Section 2, Clause 2 of the United States Constitution, includes the Treaty Clause, which empowers the president of the United States to propose and chiefly negotiate agreements, which must be confirmed by the Senate, between the United States and other countries, which become treaties between the United States and other countries after the advice and consent of a supermajority of the United States Senate.

A treaty passed by the Senate has the force of US law. In 1988, the US senate ratified the United Nations Convention Against Torture. Here are some provisions of this treaty with the force of US law:

Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation….No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture… Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

Yet, under Bush, torture was routine and unpunished.

What kind of “conservative” ignores 500 years of tradition?

Further, the US is a signatory to the Geneva Convention which does not allow the abuse of prisoners of war. Sometime in Medieval England, or maybe later, jurisprudence settled on the idea that to lock someone up the detainee must either be charged with a crime and appear before a judge, or the individual can be classified as a prisoner of war. A prisoner of war does not have a right to habeas corpus. He will be released when the conflict ends. The George W Bush administration invented a category called “enemy combatant,” thus upending hundreds of years of jurisprudence.

The war powers provision, the provisions as to treaties and the rule of law, and the Fourth Amendment have been so completely ignored and undermined that it’s impossible to square the reality of how the US government actually operates with the constitution. Three important parts of the constitution have been clearly suspended or overturned in fact if not on paper under Bush and Obama. Now, with Trump, a fourth provision of the constitution is invalidated, emoluments.

If it’s wrong, it’s wrong; if it’s illegal, it’s illegal… is that so hard to get, party people?

When Washington warned about the dangers of faction, he might have been thinking of just the scenario we now see in America. Democrats were (or claimed to be) upset by Bush unilaterally abrogating the convention on torture. Democrats claimed to be upset by the abusive and arbitrary nature of the enemy combatant status, allowing for detention forever without charge. Under Bush, a declaration of war against Al Qaeda in 2001 was used to justify kidnapping, or extraordinary rendition, and torture, including individuals with no connection to Al Qaeda. Yet, with Obama in the White House, Democrats suddenly didn’t mind the administration using this same declaration of war against one Jihadi group, Al Qaeda, as the justification for war against another non-state group, Isis, that did not exist in 2001.

Meanwhile, Republicans made all kinds of charges against Obama, accusing him of working outside the constitution but generally failing to note his violation of the war powers act, as they intended to violate the same provision if they ever re-gained the White House. Nevertheless, Republican calls for constitutional government now all ring hollow as they allow Trump to enrich himself and continue Obama’s illegal war in Syria.

You see what Washington was talking about right? He kind of had a point. If are going to be members of parties, we cannot allow these factional differences blind us to the abrogation of the constitution itself.

The situation is so bad that it is difficult to argue that the United States is currently a constitutional state with a true system of the rule of law. Without the Fourth Amendment protection of individual rights, without a system to debate the monumental decisions involved in war making, without honoring treaties, including on such a fundamental issue as torture, what is there really left of the constitution?

If we had listened to Washington, maybe we wouldn’t have had to get a refresher from Eisenhower.

But nevermind all this “constitution” nonsense, let’s get back to the important agenda for America: hyping Russian influence. You know, serious journalism.