The former President of the United States openly admitted to violating US Law and international law when he acknowledged ordering water-boarding, an action for which in previous times we have court-martialed our own troops, to which we objected when it was done to our military, and which is clearly banned by both US law and the International Convention on Torture, which as a ratified treaty is according to Article VI "the supreme law of the land." Yet the current administration refuses to even investigate the wrongdoings of the administration before it, thereby in the case of Mr. Bush perhaps demonstrating that Richard Nixon's assertion to David Frost that if the president does it, it is not against the law is now true.
Tuesday the voters of
South Carolina Florida elected to the US House of representatives a man who was fired from the Army when he should have been prosecuted for firing a gun next to the ear of a prisoner he was interrogating.
And then there is this morning . . .
This morning I come to Daily Kos and see this diary in which the Obama Justice Department intervened in behalf of an Arizona law that seems to me a clear violation of the establishment clause, and a wealth of jurisprudence that limited government involvement with religion, even to the point of arguing that much of that jurisprudence was wrongly decided.
All of these are clearly contradict what our government is supposed to be. What then do I do, teach what our government should be, or what our government is becoming?
I first began wrestling with the issue of what the hell I was doing teaching about a government that was disappearing before our eyes when the US Senate passed the Military Commissions Act. That was s severe wake-up call: at the time, I pointed out the implications of that legislation to my students, especially to those who were not yet citizens, that on the authority of the President with no oversight from anyone the Congress was willing to allow the Chief Executive to deny accused persons protections guaranteed not only under the Constitution but going back to a document the 800th anniversary of whose enactment is now less than 5 years away - Magna
Carter Carta guaranteed a right to trial by jury, and habeas corpus is a principle basic of a government of laws and not of men.
Somehow I remember a candidate who told us repeatedly that things would be different when he was elected, because of his respect for the Constitution, for example
I was a constitutional law professor, which means unlike the current president I actually respect the Constitution.
I do not see that respect in many of the actions of this administration, whether it is the refusal to examine the wrongdoings of its predecessor and hold wrongdoers to account, its continued prosecutions of trumped-up cases stemming from the so-called "War on Terror," its apparent eagerness to prosecute people under the Espionage Act for exposing wrongdoing - wrongdoing that itself is more harmful to the real interests of this nation as a democracy than any law that was broken . . .
I read the arguments in the diary to which I refer offered by Neal Katyal and my stomach turns. Perhaps it is my own religious peregrination that makes me sensitive on matters of the establishment clause. I was born Jewish, spent time in the Orthodox Church which while an ancient form of Christianity is considered alien and weird by many of an evangelical or fundamentalist bent, and am now a Friend by Persuasion, a Quaker by choice. Perhaps it is because of sufficient knowledge of history that I recognize that when establishment is allowed the possibility of discrimination against non-established religions and their adherents is often not far behind. Perhaps it is because there is a strand in our society that has chosen to ignore clear rulings from the Supreme Court about the limits of religion in public life and government. Perhaps it is because I fear we are about to prove that the stupidest man to sit on the Supreme Court since Potter Stewart (who could not define pornography but insisted he knew what it was when he saw it)left the Bench, Clarence Thomas, has been correct in the eyes of the Court when he has argued that the Establishment clause has NOT been incorporated against the states. Perhaps it is because I lived through the NY State Regents prayer period, a period ended in Engel v. Vitale in 1962, when the Courts' opinion noted that it could imagine anything more violative of the establishment clause than a government body writing a prayer.
Unleash the prosecutorial power of the government without the protections against abuse and you erase Amendments 4-5-6 and 8.
Refuse to hold accountable wrongdoers who publicly admit violating the standards of US and international law and the idea of checks and balances begins to disappear, and the we move towards an incipient dictatorship.
Erase the clear separation of government and religion and inevitably some religions will be restricted in a way that would have horrified our Founders, who knew all too well the dangers of allowing religion to interfere with the government or government to interfere with religion.
Define a corporation as having equal personhood under the constitution to the point where it can use its financial power to manipulate our political processes and where politics are tilted towards wealth in some cases with no transpareny and we cease to have a democracy where the voices and votes of individuals retain any meaning in shaping the government that is supposed to belong to We the People.
Why then am I still teaching? What the hell am I teaching? Do we now have 2.5 branches of government that no longer believe in the principles upon which I thought this nation was founded?
It is the 3rd day of 2nd quarter. All my students are to be assessed on what we have been learning on Monday. At least part of every period today will be a review of our recent studies. As I write this, a part of me thinks I should go in and tell them I can't fairly assess them because what we have been learning apparently is wrong, that I have erred in teaching them of the importance of a right to trial by jury and access to habeas, that this is a government of laws and not of men, that no man is above the law, that separation of church and state was hugely important to our Founders, that by the time of the Civil War we no longer had any state established church, that the history of the jurisprudence of the Supreme Court and of the amendments to our Constitution have been in the direction of increasing individual liberty and restricting the power of governments, state and local, to interfere with our basic rights.
If I have erred in what I have been teaching them, I also wonder what the hell is the point of my working on behalf of candidates for one party when the leadership of that party, of the administration for which so many of us labored to place into power seems willing to abandon core principles in the apparent name of protecting executive power.
I am 64. I remember the struggles of African-Americans to obtain a semblance of equality even 100 years after the official ending of slavery. I lived through the McCarthy red scares. I have seen racial and religious hatred and xenophobia, and thought we had moved to a point where leadership on both sides of our political divide had agreed that such should NOT be a part of our acceptable political discourse, only to see such hatred and xenophobia and intolerance not only acceptable but supported in order to gain more political power. When the next Speaker of the House is willing to publicly appear with someone who apparently proudly dresses up as an SS officer - even though that person is almost certainly would not win his election - what else can that be except a dog whistle to those forces of intolerance and hatred? When political leaders refuse to condemn the ravings of Glenn Beck, appear on his show or at his events, how is that not acquiescing in allowing the rising up again of rule by mob? How is that not being willing to destroy what progress we have made for the purpose of obtaining political power at any cost? How is unleashing corporations as has been done administratively and legislatively by both parties in their seeking of campaign funds and support not a step in the direction of a system where corporate profits trump all other values, itself an indication of an incipient fascism?
What then am I teaching? Why do I bother?
Because so far no one has tried to stop me, and I hope against hope that I might make a difference.
Because to give up now is to acquiesce in evil - that's right, EVIL.
Because not to teach would be to abandon everything that has mattered in my life.
Perhaps mine is ultimately a futile task. Perhaps the last remaining gesture might seem too much like that of the Jews who held out against the Romans at Masada.
I know this. If I stop teaching, if I stop challenging, then I am not sure I have a justification for continuing to live.
I will share both my doubts and my determination with my students. Today I will review for their assessments on Monday.
Today I will continue to teach them what our governing documents have meant during my lifetime.
This is not the first time our values and our liberties have been under attack, in jeopardy. Unless we give up and allow them disappear, it will not be the last.
I may be spitting into the wind.
I may be as foolish as this man:
I am surely not as courageous.
But I will continue to do what I can do, as long as I have voice, as long as I have breath.
What about you?