What's the Preamble Party? II

   The Preamble Party is right now my Party-of-One.

  It occurred to me that, as I was working on my Preamble Project--to get school children and municipal, state & federal officials to recite the 52 words of the 1st sentence of the US Constitution, more commonly referred to as the Preamble, the Preamble itself made a fairly decent political "platform" to stand on.


Here's how it goes:

We the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

This sentence serves two purposes: The first, to establish the power structure of the new Republic; that is, We the People have in the aggregate all the power, and only some of which did we imagine that we were delegating to the new government (particularly since governments through the ages have richly deserved the rotten reputations they earned).


The second: to set out a mission statement, a set of instructions from We the People to our new government. Had the framers of the Constitution had a PC and PowerPoint, the Preamble would have just fit in the strictures folks usually share about PowerPoint slides--namely, no more than six bullet points on a slide.


And here they are. We set up the Constitution in order to:

• form a more perfect Union
• establish Justice
• insure domestic Tranquility
• provide for the common defense
• promote the general Welfare and
• secure the Blessings of Liberty to ourselves and our Posterity

If our officials actually achieved these objectives, I thought that'd be a pretty good thing.


Our early forebears were suspicious of governments, even, or perhaps more so, the government they were setting up with the Constitution. First, there were those who did not want a federal government at all. Maybe a federation or confederation of loosely allied neighboring territories.


But the Federalists, those who wanted a federal, national government, held firm. The doubters then insisted that there be a Bill of Rights, without which they would not ratify the Constitution.

However, some others pointed out that there was a real danger in creating such a list, unless it was 100 per cent inclusive, of any and all rights to be specifically retained by the people as beyond the reach of the government. They might have argued, sure, we're provided for freedom of the press, but if we forget to add freedom of radio, freedom of telephone, freedom of television? What then.
There's that common law rule of interpretation that goes, expressio unius est exclusio alterius--the expression of one thing means the exclusion of others, or even all others--like, you were making your list, you had your chance to put everything on it you wanted, but you left this item off, so obviously you weren't intent on retaining this particular right.


James Madison had to admit that this was the only cogent argument he'd heard about why having a set of enumerated, listed, rights was a dangerous thing. But he had a solution: To say in the Bill of Rights that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."


 This became the Ninth Amendment.


But  then comes the problem the American Civil Liberties Union uses as its slogan--which is "ACLU--Because Freedom Can't Protect Itself."  That is, the Unenumerated Other Rights can't define themselves. You might paraphrase the old Lamont Cranston radio show (via Flip Wilson) to say, "Who knows what other rights lurk in the minds of man? The Shadow do."


Who, for example, is going to take on listing the unlisted, enumerating the unenumerated?  What legislator, what judge, what member of the Supremes is going to take that on? I think one sitting judge, Rob't Bork, called the Ninth "an inkblot" that no one could hope to decipher, as he was being interviewed by the Senate Judiciary committee. Not a good sign for the Ninth.


Well, SCOTUS Justice Arthur Goldberg took it on in the 1965 case Griswold vs. Connecticut, and he found that privacy in the bedroom, as it's often put, is one of those unenumerated rights. Mind you, this was the bedroom of a married male and female, and they wanted to use condoms not as prophylactics but as family planning equipment.  Nothing unconventional or extraordinary. And Goldberg's was only a concurring decision, joined by one other jurist (if memory serves).


But what other unlisted rights d'you think lurk in the minds of man and woman? Privacy, the right to be let alone by our government, or gummint, as I like to call it, seems to be one obvious candidate.  Access to the best current means of communication without let or hindrance would seem to be another.  


Note that speech, letters and the press were the height of technology when the Bill of Rights was/were written. But then came the telephone (telephony is regulated, you may notice). And Radio. And TV (both regulated, as our forebears feared (that is, if you don't list it, you loose it). Then cable, satellite, microwave/WiFi and, ta daaa, the Internet & computers.


Of course, it's not like we have clear sailing even on the enumerated rights, like the right to be:

"secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures, [which right] shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Fourth Amendment.

You remember the hubub about wholesale (not retail, but wholesale--much cheaper that way) warrantless wiretaps a few years ago. That enumerated right was violated, despite the Constitution saying it "shall not be violated." The Bill of Rights can't defend itself. (Did I hear a "No doi?" from the peanut gallery?)

Take the one I ran into last week--"freedom to peaceably assemble and petition" (First Amendment). I wasn't allowed to ask my fellow senior citizens in the Woburn senior citizen center to sign my nominating petitions. I didn't have any grievance to redress before I got there, but of course I do now, so the city solicitor is having a sit-down with the center director to see what they can work out in terms of "supporting and defending the US Constitution." (That oath thing that public officials take before some of our delegated power is bestowed upon them--often called "being sworn in".)

Getting back to the enumerated, quite specific Fourth Amendment: A couple of years ago, author James Bamford wrote The Shadow Factory, a "long read" (formerly known as a book) about the National Security Agency (the NSA, formerly known as No Such Agency--a pretty secretive, but huge, outfit. Bamford wrote that, by about January or February of 2002, the NSA had gotten the secret cooperation of all but one of our major telecommunications companies to put "splitter boxes" on the fiber-optic trunk lines. Meaning "fiber-taps" that duplicate every bit--every binary digit, every 0 and every 1 of every communication that goes over the fibers--and sends it down to some humongous computer-disk-farms somewhere in Texas, to be data-mined "for security purposes."

This would include any and all traffic over the lines, copper, microwave transmission, fiber-optic, cellular, etc. From phone calls to highway toll transponders, email, medical records, library records, credit card purchases, all Internet activity of any type, from Skype to YouTube to Facebook to Google. The only hold-out was the CEO of USWest, who, after refusing to cooperate, was brought up on charges of insider stock trading. Absent an investigation, one can only speculate whether this legal tsouris was "post hoc, ergo propter hoc (after this, therefore because of this (a logical fallacy, it's called).

I haven't heard anywhere whether these splitter boxes have been removed, assuming Bamford was correct about their installation. But given that the next administration that came into office has kept many of the same illegal practices in place (Guantánamo is still open for business, I can't be too sure--though apparently not for waterboarding and other torture; the President claims a non-existent "secrecy privilege" as did his predecessor. And this so-called secrecy privilege has been asserted, in every instance I believe, to prevent government officials from being held accountable.

 It is hard for me to understand all the effort goes into obstructing most of these investigations, when the President can free any convict with the stroke of a pen. Yes, there might be political consequences (that is a euphemism for "someone might lose the next election"), but is it really just all about keeping salary, power, perqs and pensions?

I can see a point in stone-walling the torture cases where death has resulted from the torture; the count is at about 120 men and boys who died under torture. Now, those crimes carry the death sentence (18 USCode §2441). But the President can pardon even those sentenced to death. He just can't unimpeach anyone (which is, I suppose, why Speaker Pelosi amended the Constitution by herself to rescind the process of impeachment. You'll remember that she infamously, or famously, declared her Constitutional Amendment this way: "Impeachment is off the table." or "Impeachment is not on the table." Simple. Very domestic. Kinda' folksy, grandmotherly 'n' all that. But there's a whole paragraph in the Constitution that goes into some detail on several options for amending the Constitution. (Article V). And the Speaker of the House standing up in front of a lot of microphones and TV cameras, etc., and just saying "Impeachment is off the table" is definitely not among them.


(And of course Goldman Sachs is still running the Treasury department, as it did with Clinton, then Bush II and now this administration. Maybe it's true that you should put thieves in charge of catching thieves, as they know the ropes. But that doesn't fill me with domestic Tranquility. Howabout you? Like, is that the best we can do in this country? What's that French line? The more we choose, the more things mem? Hafta look that one up, but not while I'm typing. Breaks the chain of thought.)

Hmmm.  Now, where was I? Short-term memory goes first.

Oh well. So that's a bit about The Preamble Party, how it grounds and leads into the Constitution (which every office-holder at the federal and state level (and even in some cities--Waltham councilors take the federal oath as do state officials, but Watertown councilors do not. And of course the President has his own special oath, set out in the Constitution--if only the Chief Justice of the Supreme Court could remember how the heck it goes. (I sure hope he looks things up when he's deciding cases, but I'm not sure now, given the fact that the majority can't tell the difference between a person and a piece of paper (a corporate "charter" in this instance). I mean, gee whiz, dad, the emperor's decision doesn't have any clothes on. Maybe that's why it's Untied Citizens vs. the FEC?

bw