Letters at 3AM: An Arbitrary Nation, Part 1

We are governed today by an arbitrary legal hodgepodge

Letters at 3AM: An Arbitrary Nation, Part 1
Photo by Jason Stout

The Constitution of the United States – read it lately?

Perhaps not.

We'll start with the amendments, but first: my purpose. This series of columns is called "An Arbitrary Nation" because it will demonstrate that our Constitution is no longer a functioning document of law. Instead, we are governed today by an arbitrary legal hodgepodge that is arbitrarily applied with scant regard for constitutionality or any coherent code of principles. This state of affairs bears no resemblance to what we mean by the rule of law in a nation of laws.

Taken alone, any particular item of what follows might be thought an anomaly; take them together, and what you see is disintegration – a political entity strained and breaking at almost every point, too crippled to fix itself.

What to do about it? I have no idea. But I know this: It is idiotic to speak and think about American politics as though our system is what it was 20 years ago. Worse than idiotic – delusional.

Sound extreme? Well, here we go:

The First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Item 1: I was about to write the phrase "literate citizens," but it's worth mentioning at the outset that there are fewer and fewer of such people in this country, and that, though I keep my vocabulary on the street, there are many, many thousands of fellow citizens unable to read this or any serious article – a well-documented fact which, all by itself, wounds the body politic terribly.

Back to Item 1: Literate citizens who followed the 2012 elections know that the Supreme Court blew up the floodgates and let loose millions in "dark money" and "super PAC" contributions, giving anyone with the cash the power to influence any election anywhere in the country.

It should go without saying that your vote loses its weight and your voice loses its strength when local elections are no longer truly local. Yes, we've let this gradually happen nationwide, and we take it for granted. But is it democracy when factions far from home wield heavy power in your district?

What the Supreme Court did was to equate free speech with the money to buy a venue for free speech. It's official now: Speech equals money. So the court did not technically abridge freedom of speech. Instead, it turned up the volume on monied speech to a deafening roar. It didn't abridge, but it did corrupt. The Court used a law to diminish a law and drain the First Amendment's potency.

Item 2: The New York Times, August 2, 2012: "In response to recent ... disclosures about the so-called kill list of terrorist suspects designated for drone strikes and other intelligence matters, the Senate Intelligence Committee has approved misguided legislation that would severely chill news coverage of national security issues." This legislation was "drafted in secret without public hearings."

So it came to pass that, without fanfare or protest, the Intelligence Authorization Act for Fiscal Year 2013 got signed into law by President Obama during the last week of last year, rife with all the features that the Times feared.

The bill "designates [that] only the Director or Deputy Director of intelligence community elements and their designated public affairs staff may provide background or off-the-record information regarding intelligence activities to the media. Requests that DNI [Director of National Intelligence] publish specific requirements for personnel with access to classified information, to include non-disclosure agreements, prepublication review, and disciplinary actions. Requires the Attorney General to report back to the committee on the effectiveness of and improvements for investigating and prosecuting unauthorized disclosures" ("Intelligence Authorization Legislation: Status and Challenges," Congressional Research Service, posted March 25).

As the Times pointed out when the bill was drafted, "There is no exception carved out for whistle-blowers or other news media contacts that advance the public's awareness of government operations, including incidents of waste, fraud and abuse in the intelligence sphere."

Technically, the law isn't about the press. It's about government employees. But it drastically restricts press access and widens the ever-growing gap between this government and its citizens.

Congress and the president used a law to diminish a law and drain the First Amendment.

Item 3: Tarek Mehanna – an American citizen, American-born, who has a bad case of ugly beliefs. Until Mehanna was arrested, tried, and sentenced in Boston last year, ugly beliefs (in fact, all beliefs) were protected by the First Amendment.

"... Mr. Mehanna's conviction was based largely on things he said, wrote and translated. Yet that speech was not prosecuted according to the ... standard of ... 'imminent lawless action' but according to the much more troubling standard of having the intent to support a foreign terrorist organization. ... Mr. Mehanna's crimes were speech crimes, even thought crimes. ... [The prosecutor actually said] that 'it's not illegal to watch something on television. It is illegal, however, to watch something in order to cultivate your desire, your ideology.' In other words, viewing perfectly legal material can become a crime with nothing other than a change of heart" (The New York Times, April 21, 2012).

Mehanna drew a 17-year sentence. He's been in jail a year. The American Civil Liberties Union is appealing. We'll see. But note: An American citizen has been in jail for a year because he studied and expressed his beliefs.

The Second Amendment: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Full disclosure: I don't and won't own a gun.

That said, the Second Amendment comes second because we wouldn't have a country if the American colonists hadn't been an armed citizenry. It's not about our right to shoot rabbits or burglars. It's about our right to fight oppressive rulers.

It's also about what "militia" meant in 1787. The Oxford English Dictionary cites the old U.S. definition from 1890's The Century Dictionary: "The whole body of men declared by law amenable to military service, without enlistment, whether armed and drilled or not." "Militia" meant men of age for military service, rather than a federal- or state-controlled outfit.

Notice that the amendment does begin with "well-regulated." Not just regulated, but regulated well. The Framers of the Constitution never heard of cowboys because cowboys didn't exist in 1787 – but the Framers, peace-loving revolutionaries to a man, didn't want cowboy militias screwing up their one-of-a-kind experiment in small-"r" republican democracy.

Gun control is constitutional; so is packing heavy ordnance.

Ah, those Framers. What a sense of humor.

If anything in this column has upset you, here's some good news:

Nobody has screwed with the Third Amendment, and I'm certain nobody's gonna: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."

Feel better now?

To be continued.

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More U.S. Constitution
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Richard Whittaker, April 14, 2017

An Arbitrary Nation, Part 6
An Arbitrary Nation, Part 6
The Ninth and Tenth are the invisible Bill of Rights amendments – universally ignored

Michael Ventura, July 26, 2013

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U.S. Constitution, First Amendment, Second Amendment, Third Amendment

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