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Losing the Republic

By Bruce Fein
April 8, 2008

Ideas matter. Ideas dictate the meaning of the Constitution. When white supremacy was celebrated, subjugation of blacks was indulged by the United States Supreme Court despite the equal protection creed of the Civil War Amendments.

As Justice Samuel Miller lectured in the Slaughterhouse Cases (1873): "No one can fail to be impressed with the one pervading purpose found in them all, and without which none of them would have been suggested. We mean the freedom of the slave race, the security and free establishment of that freedom, and the protection of the newly made freeman and citizen from the oppression of those who had formerly exercised unlimited dominion over him." White bigotry proved more powerful than the clear intent of the Constitution.

President Bush's signature constitutional idea is that he is the law. The idea is taking hold in a climate of post-Sept. 11, 2001, fear. Under the banner of fighting international terrorism, Mr. Bush claims unchecked powers historically associated with despots: torture; kidnappings; secret imprisonments; indefinite detentions of suspected unlawful enemy combatants; violations of the Constitution and laws with impunity; and, the authority to employ the military at any time and place of his choosing. On the domestic front, Mr. Bush disputes the power of Congress to oversee the executive branch for lawlessness, abuses, or maladministration. He signs laws while asserting a right to disobey those provisions he pronounces to be unconstitutional.

With few exceptions, Congress, the media, and the public have slumbered as the Republic has been dismantled brick-by-brick. A restoration is possible, but only through an aroused and enlightened citizenry. There are no quick fixes.

The sinews of self-government, checks and balances, and protections against government abuses lie in the hearts of men and women. When these hallmarks are unable to command homage, no constitution, no law, no court can save the situation. In the words of Pogo, we have met the enemy of the Republic, and he is us.

These concerns are neither premature nor alarmist. James Madison, father of the Constitution and Bill of Rights, instructed: "We are right to take alarm at the first experiment upon our liberties," and elaborated, "I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations."

Supreme Court Justice Louis D. Brandeis chorused in Olmstead v. United States (1928): "The greatest dangers to liberty lurk in insidious encroachments by men of zeal, well meaning but without understanding." Writing in "The Decline and Fall of the Roman Empire," Edward Gibbon warned: "The principles of a free constitution are irrevocably lost, when the legislative power is nominated by the executive."

Democracies, however, are not fastidious over form or procedural safeguards. They live in the present. Ordinary citizens demand immediate results. They know less and less about abuses of power and the Constitution and care less and less about posterity. The portent is unmistakable. As Thomas Jefferson underscored, no nation has ever been both free and ignorant.

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