Like any day of the year, there are multiple events that could be commemorated today. For example, several presidents were inaugurated on March 4 before the 20th (Lame Duck) Amendment moved Inauguration Day to January: Lincoln in 1861, Taft in 1809, and Wilson in 1913. Those of a Conservative political persuasion might honor the 1952 marriage of Ronald Reagan and Nancy Davis. Given that March is Woman's History Month, the 1917 swearing into Congress of its first woman, Jeanette Rankin of MT, might be an appropriate occasion to commemorate.
But for me there is one event that stands out, and which given our recent history and our current multiple crises, rises to the top of any such list I might create. In 1789 on this date, our government under the Constitution officially commenced with the swearing in of the First Congress in New York City. It is that upon I wish brief to reflect this morning.
The original meeting was in New York, perhaps appropriately given some of our current concerns, at 26 Wall Street. The House did not finally reach a quorum until April 1 (hmmm) and the Senate until April 6. Washington was not inaugurated until the end of April, the 30th.
That Congress established three departments: Foreign Affairs (to be headed by Thomas Jefferson), War (Henry Knox), and Treasury (Alexander Hamilton). A compromise was worked out in 1790 which allowed the establishment of the District of Columbia on the banks (originally both sides) of the Potomac River. It established laws for patents, copyrights and the Federal Judiciary.
But perhaps its most important legacy was passing and sending to the state for ratification a package of 12 Amendments to the Constitution. We commemorate that action on September 25, for it was the completion of the Constitution - without a commitment to a Bill of Rights (10 of the 12), several states might well have not agreed to ratify. We tend to forget how close a matter it was, with real doubt whether either New York or Virginia would agree. In the case of Virginia, not only did the concern of Jefferson weigh heavily, but the grand old man of Virginia politics, himself the author of the Virginia Declaration of Rights written BEFORE the Declaration of Religious Freedom, George Mason, had refused to sign the Constitution precisely because it lacked a Bill of Rights.
That brings me to my thoughts of the day, however meagre they may be. I write about this topic as much in sorrow looking back over the last administration, but even those that went before it, when the Congress was at best acquiescent in the expansion of executive power, and far too often supine when it should have been insisting upon its status as at least a co-equal branch of government. My current sig, do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?, is a reflection of that sorrow, which at times was more of a white hot anger at the refusal of the Congress to rein in the abusive nature of the Bush administration. As we have learned from the release of the Yoo memoranda, any doubt about what we confronted should now be dissipated: we were in a dictatorship, the Constitution and much of the protections of that Bill of Rights crafted by the Congress that first met on this day in 1789 nothing but words on paper, which the administration felt free to ignore at its own discretion.
My wife is greatly fond of George Mason, and has been since she was 15, many years before we moved to Virginia in 1982. She viewed his Virginia Declaration of Rights as a seminal document in the development of the idea of protected liberty, part of a flow from Magna Carta, Petition of Right, Habeas Corpus Act, and the British Bill of Rights that helped define the idea of guaranteed rights of individuals against government action, at least in the English speaking world from which our nation largely arose. I insist that my students learn about him and his Declaration, along with Jefferson's Virginia Statute for Religious Freedom (moved through Burgesses by Madison in Jefferson's absence overseas) as important landmarks that helped make the idea of a written Bill of Rights more readily accessible to that First Congress.
We are in crisis. Congress has a role to play in responding to the challenges. The Obama administration should no more be deferred to on all things than should that have occurred with such disastrous consequences during the previous 8 years. That does not mean that Congress should be a roadblock to change. Nor should the actions be seen merely for partisan advantage, such as the nigh universal negatives to date from its Republican members with respect to the President's agenda. Congress has as much of a moral responsibility to police itself and exercise self-restraint as it does of serving as a check on any holder of executive power.
I do hope that the current members and their leaders of BOTH parties will think back to how that first Congress operated. While there clearly were factions, there were no clear political parties. They understood they had a serious task before them, because the Constitution gave them so much power and responsibility. They had to create the executive agencies, establish a banking system, and meet the commitment to the protection of indiidual rights. Consider their approach. The Constitution had specifically limited some federal power in Section of Article I. That First Congress went further, acknowledging in what is now the 9th Amendment that they might not have enumerated all rights held by the people,and in the 10th, that powers not specifically given by the Constitution to the national government nor prohibited by it (Article I, Section 10) to the states were reserved to the States and the People.
I often wonder how many holders of important positions in our Government really know and appreciate the Constitution as it currently stands. Certainly we have had justices of the Supreme Court whose hair-splitting and judicial contortions to reach what appear to predetermined decisions is upsetting, no matter if they label themselves as Strict Constructionists or Originalists, or perhaps take a position in opposition to either of those interpretative stances.
My focus today is primarily on the Congress, and the greatest of the creations of that First Congress, the Bill of Rights. I do not understand how one can take an oath to support the Constitution and then willingly either pass laws clearly in violation of the spirit if not the letter of that document as amended including with the Bill of Rights - think here of the Military Commissions Act, for starters, but also think of flag-burning laws, or attempts to declare this a Christian nation - or acquiesce in Executive action that is clearly their responsibility to oppose and rein in - the offshoring of prisoners at Guantanamo, the abandonment of long-held principles, the assertions that were known to all about assumptions of unconstitutional executive power, and what was known by leaders and those heading intelligence committees of the abuses of law, ratified treaties, and more.
I am delighted that the Obama Justice Department under the leadership of Eric Holder, has made public the Yoo memoranda. That is a start at applying the disinfectant of sunlight to such abuses, and I fully expect to see continued scurrying by those cockroaches and other vermin who approved of and utilized such poorly drafted legal fictions to justify their abuses - and I apologize to the cockroaches and other vermin for the unfortunate comparison. We need more - all presidential executive orders, reversing those whose sole 'legal' basis was a Yoo or Bybee or other incompetent or corrupt administration lawyer's memorandum. Anyone who was convicted as a result of actions flowing from those memoranda should immediate have their sentences erased, expunged, regardless of the acquiescence of some in the Judiciary, which unfortunately includes too many willing to grant and support the dictatorial powers claimed under the theory of the unitary executive. That does not mean that such individuals are exempt from prosecution under appropriate laws.
There is a further responsibility, and that falls on the Congress itself, to right its own wrongs. I have mentioned the Military Commissions Act. It is one example that continues to be an unfortunate distortion of our tradition. I would urge the Congress, in conjunction with the Justice Department, especially an HONEST Office of Legal Counsel, to do a thorough examination of the laws which Congresses have granted wishes of Presidents that perhaps exceed the intent of our Constitution.
Our Constitution, and its Bill of Rights. Our Bill of Rights. The intent was to limit the power of government, to protect the rights we need if we the people are to remain sovereign. We should insist on nothing less than our own sovereignty, and place as a price of our electoral support that those elected to the House and Senate properly honor the letter and the spirit.
I would like to be able to have a more sanguine sig. As I complete this I listen to music by Antonio Vivaldi, also born this day, in 1678, almost a full century before the birth of this nation. His music always uplifts my spirits. Would that our elected officials could themselves take actions and speak words that were so consistently uplifting, giving of hope.
I'll settle for much less. I'll settle for them fulfilling their Constitutional responsibilities, their oaths of office, to a Constitution which includes those 10 Amendments (from the first package of 12) passed by the First Congress in 1789. And then perhaps I will no longer have to ask my question:
do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?
Peace.