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'Resist the beginnings' and 'Consider the end'
"Avoid these ends by avoiding these beginnings". This is the kind of thing retired supreme court justice Sandra Day O'Connor has been saying with increasing force recently as she continues to warn us that judicial independence in this country is under threat. She says, "It is for you and other educated Americans, to be dedicated to the practice and promise of our Anglo-American common-law tradition, which makes the courts - armed wtih the power of judicial review and protected by judicial independence - part of the people's arsenal to enforce the rule of law and protect individual freedoms.
Judicial independence is not all that is threatened - and judicial independence alone can not protect us or our constitutional system of the rule of law and individual freedom. The judiciary has no mechanism of enforcement to limit claimed executive power - as was done recently in the Hamdan v. Rumsfeld decision. If the executive refuses to comply - or claims that the decision does not say what it clearly does say - then enforcement is left to the legislative branch with their power of the purse or in the final analysis to us - the people.
Listening to the Senate Judiciary Hearing on Senator Spector's proposal to retroactively legalize NSA warrantless spying on American citizens and reverse almost 30 years of legislative and judicial oversight, I am outraged that I can sense no serious commitment to "enforce the rule of law and protect individual freedoms". Here is the oath of office our Senators have taken:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
Do our Senators understand what they are doing? Are they listening to Sandra Day O'Connor when she tells us to "Avoid these ends by avoiding these beginnings"? They try to make a small bit of difference for good, maybe limiting some of the excesses if they think they can succeed - but that is not enough. Hear what Milton Mayer tells us in his book "they thought they were free", about how catastrophe overtook the German people:
"Oh, 'effectiveness,'" I said. That I heard from my friend the teacher. For the sake of being effective he did everything required of him, and of course he wasn't effective. He knows that now. But then he had hopes of being able to oppose the excesses..." "Yes, it was always the excesses that we wished to oppose, rather than the whole program, the whole spirit that produced the first steps, A, B, C, and D, out of which the excesses were bound to come. It is so much easier to 'oppose the excesses,' about which one can, of course, do nothing, than it is to oppose the whole spirit, about which one can do something every day."
I fear we can not depend on most of our political elite to significantly resist - at least not without such a level of encouragement from us, the people, that it becomes impossible to ignore us. That is what we must do, because we can't afford to ignore the lessons of history. Again, from Mayer:
"What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if the people could understand it, it could not be released because of national security."
"How is this to be avoided, among ordinary men, even highly educated ordinary men? Frankly, I do not know. I do not see, even now. Many, many times since it all happened I have pondered that pair of great maxims, Pirncipiis obsta and Finem respice- 'Resist the beginnings' and 'Consider the end.' But one must foresee the end in order to resist, or even see, the beginnings. One must foresee the end clearly and certainly and how is this to be done, by ordinary men or even by extraordinary men? Things might have changed here before they went as far as they did; they didn't, but they might have. And everyone counts on that might."
'Resist the beginnings' and 'Consider the end'
"Avoid these ends by avoiding these beginnings"
Note: RevDeb recently reminded me of Mayer's book, I highly recommend it - even though (or especially because) reading it in our current political climate may give you nightmares.
