Court Gives Trump Dictatorial Powers

In this morning's news comes word that the US Supreme Court, in a 5-4 decision, has ruled that the Trump administration can transfer $2.5 billion from the Defense Department budget to use to build a portion of the border wall they have been pushing. This comes despite Congress's specific and intentional refusal to appropriate funds for this project, despite strong Administration efforts to ram it through, including the longest government shutdown in American history.

Article One, Section One of the US Constitution states:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Article One, Section Nine of the US Constitution states:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law...

So, all legislative (lawmaking) powers belong to congress. And no money can be spent without a law authorizing it. Yet in this instance the Executive Branch is being allowed to do just that, to spend money without a congressional appropriation. How are we not a dictatorship if the president is allowed to, of his own individual will, usurp a power of congress and spend money for purposes not appropriated by congress? This decision, reached solely on the strength of the Republican-appointed majority on the court, and overturning lower federal court decisions, is an incredible dereliction by the Supreme Court. What need is there of a congress at all if the executive can create laws on his own and assume jurisdiction over its constitutionally designated powers? We still have the trappings of a representative, constitutional republic, but with this decision and precedent, how are we different from a dictatorship?

Will Trump Have to Release His Tax Returns?

We are about to find out whether any truth remains in the statement of principle carved into the facade above the entrance to the US Supreme Court Building: EQUAL JUSTICE UNDER LAW. With Democrats now in the majority in the House of Representatives, President Trump is about to be subjected to the kind of scrutiny lacking under the previous Republican-controlled House.

In one such case, moves are underway to get Trump to do something every president has done voluntarily since the days of Nixon: show the American people his tax returns. Section 6301(f)(1) of the tax code is unequivocal in its authority. It states:

"Upon written request from the Chairman of the Committee on Ways and Means of the House of Representatives...the (Treasury) Secretary shall furnish such committee with any return or return information specified in such request..."

The current Ways and Means Chairman, Congressman Richard Neal of Massachusetts, has sent such a request to IRS through Treasury. It comprises the past six years of Trump's personal taxes, from years 2013 through 2018, and the returns of eight of his companies. Note that there is no uncertainty or ambiguity in the statute. The chairman can request "any" return. The Secretary of the Treasury "shall furnish" the returns or information requested.

That hasn't stopped Treasury Secretary Steve Mnuchin, a Trump appointee, from refusing to comply. The committee deadline for receiving the documents was April 10. Instead, Mnuchin returned a message to Congressman Neal referring to "serious issues concerning the constitutional scope of Congressional investigative authority, the legitimacy off the asserted legislative purpose, and the constitutional rights of American citizens." In other words, to him, the plain letter of the law is meaningless. The Trump Administration will fight the request, tie things up in the courts, and attempt to run out the clock on transparency until after the 2020 election, the end of Trump's projected second term, or likely in perpetuity if possible.

So, does the clear wording of the law have any meaning, or does the fact one is president nullify any obligation to adhere to it? In the coming months we will get a clear answer to that question, along with a good indication of whether we are still a republic, or are evolving into something else.

White House "Resistance" Needs to Step Up

Two new revelations have come out this week about the Trump presidency. Venerable journalist Bob Woodward is publishing a book based on multiple interviews with administration principals called "Fear: Trump in the White House," and yesterday the New York Times ran an anonymous editorial written by a high-ranking administration official. Both reinforce the perception of an amoral and mentally unstable leader in charge of the world's most powerful nation.

The Times op-ed describes a network of administration insiders who like some of Trump's policies, such as deregulation, tax cuts for business and the wealthy, and an expanded military, yet who have formed a "resistance" to protect the country. These insiders are appalled at such things as Trump's lack of principles, affinity for enemy dictators, hostility to civil liberties such as freedom of the press, going off the rails at important meetings to neglect important business and turn proceedings into extended personal tirades, and penchant for issuing dangerous and reckless orders. The author relates that this internal "resistance" has "vowed to do what we can to preserve our democratic institutions while thwarting Mr. Trump's more misguided impulses until he is out of office."

Even more remarkable, the writer discusses how administration officials even considered invoking the 25th Amendment against Trump. The 25th sets out a procedure for removing a president from office in case the person is or becomes unfit for office and incapable of carrying out the responsibilities it entails, whether from physical, or more germane to this presidency, mental reasons. They decided not to because, "no one wanted to precipitate a constitutional crisis."

The author portrays these administration insiders as heroes, saving the country from the excesses of an imbalanced and dangerous president, but that is not an accurate assessment. They are instead enablers, complicit in the danger and insanity. It is good they recognize the 45th president for the unfit menace he is. It is also good when they step in and get in the way of his crazier impulses. But real heroes would take the next step: knowing that a madman is in office who has the power to cause lasting national and even international havoc, up to and including the power to initiate global nuclear war, they would act to use the constitutional tools at their disposal to remove this menace from any position of authority in the government of the United States. Knowing what they know, anything less is only cowardice.

LA Times Castigates "Our Dishonest President"

Anyone who follows or drops in on this blog even occasionally knows I have opinions and express them in these columns. They also know I take pains, just as I did in my book, to rigorously fact-check everything I present. We live at a time where the cover story in a recent Time Magazine was titled "Is Truth Dead?" At such a time it is more important than ever to assert my adherence to the principle that truth matters and that facts must form the basis of thought and discourse. I believe that to abandon that principle is to court a descent into barbarism of the kind seen in the totalitarian regimes of the twentieth century.

I thus find it gratifying that more and more opinion leaders such as Time and CBS News are focusing on that fundamental principle and speaking out directly. The impetus behind this, of course, is the current lying president and the lying crowd of retainers and sycophants who surround him. Today's lead editorial in the Los Angeles Times is a strong example of the increasingly forthright stance being taken as a result of the rising alarm associated with the serial prevarications of the minority president and his enablers. I find the trend refreshing, if unfortunately belated in too many cases.

Today's Times editorial, "Our Dishonest President" is the first of a series of four. I encourage you to click on the link and read it in its entirety yourself.To give you a synopsis, it pulls no punches in using such terms as "narcissist, demagogue and dangerous" to describe the man in the White House. His policies are characterized by such terms as "train wreck, catastrophe, chilling and frightening." But their harshest criticism is reserved for the man himself, "unpredictable, reckless and petulant," "imprudent and erratic."

Their detailed critique, to follow in installments over the next three days, will concentrate on three aspects of the current chief executive's character flaws that present a danger to the republic itself.

They are:

1) "Trump's shocking lack of respect for fundamental rules and the institutions on which our government is based."
2) "His utter lack of regard for the truth."
3) "His scary willingness to repeat alt-right conspiracy theories, racist memes and crackpot ideas."

The Times concludes today's piece with the warning that those who oppose the president must speak out strongly and incessantly in order to safeguard the constitution and all it stands for. I couldn't agree more. I look forward to tomorrow's piece on the president's attempts to undermine constitutional government itself.

Retired Justice Stevens: Constitution Needs Amending

Retired Supreme Court Justice John Paul Stevens has written a book: Six Amendments: How and Why We Should Change the Constitution.  The nation's third-longest serving Justice, Stevens was nominated by President Gerald Ford in 1975 and retired in 2010 after over 34 years on the nation's highest court.  On April 30 he appeared and submitted testimony to the Senate Rules and Administration committee on his proposed amendments.  Though none are likely to pass in the near future, owing to the politics involved, all are excellent ideas for shoring up a democracy badly in need of some common sense help.  Maybe in the long run his wisdom will triumph.  Here they are.  My comments follow. 

1. The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials. in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
2. Political Gerrymandering – Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.
3. Campaign Finance – Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
4. Sovereign Immunity – Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.
5. Death Penalty- (Amend the 8th Amendment) Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.
6. The Second Amendment – (Amend the 2nd Amendment) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.

Amendment 1 clarifies the "supremacy clause," declaring that federal law supersedes state and local laws.  "State's rights" advocates, apparently still not reconciled to the outcome of the Civil War, will never stop until it is spelled out this obviously.
Amendment 2 is badly needed so that the actual composition of the voting population of a state will most often determine who is elected, rather than political tampering with district boundaries for partisan gain.
Amendment 3 is, in my view, the most badly needed of all.  If something like this isn't put in place we are well on our way to becoming a plutocracy.                                                                               Amendment 4 backs up his first suggestion, in case anyone didn't get the message.
Amendment 5 is a provision whose time has come.  In 1976, new to the High Court, Stevens voted to sustain the death penalty.  He has since evolved on the issue.  This barbaric practice must go.   Why? Two wrongs don't make a right, it's impossible to rectify a mistaken conviction, and once a person is in state custody and no threat, to kill him/her is simply murder.
Amendment 6 restores the original intent of the Second Amendment.  Good luck getting this passed anytime soon, though. 

High Court to Try Health Law This Week

The stakes will be high this week as the Supreme Court devotes three days of hearings to challenges to the Patient Protection and Affordable Care Act.  Not since the civil rights cases of the 1960s has the high court set aside so much time for oral arguments on a single topic.  The issues fall into three categories: jurisdiction, mandates and severability.  These issues will be argued successively by attorneys attacking and defending the Health Law, and when the court rules it will both determine the future of the Act passed two years ago this month and enter the middle of the election battle being contested this year.  Any decisions the justices reach will be rendered at the end of the court's session, probably in late June. 

The first issue to be discussed concerns jurisdiction, or more precisely, timing.  Since the parts of the law the plaintiffs object to haven't even taken effect yet, the court wants to hear why it is required to act now, since no one has yet been "injured" by the legislation.  An 1867 law, the Anti-Injunction Act, prevents court action on new taxes until they have begun operating.  Most court watchers do not expect this concern to derail the proceedings.

Next the justices will hear the meat of the oppenents' case, their objection to mandates.  The Act says almost all individuals and larger employers will have to buy health insurance or suffer financial penalties.  (Individuals already covered under employer-purchased plans will not need to make any changes.) Subsidies are to be made available for people with incomes below $80,000 on a sliding scale.  There are also mandates on states; they will have to cover everyone under medicaid who makes 133% or less of the poverty level, or suffer cuts in federal aid.  The Medicaid arguments will be heard Wednesday.  The Administration will contend that the Act adheres to the Constitution's grant of congressional power to "regulate commerce among the several states" and to do what is "necessary and proper" to "promote the general welfare."  For instance, the uninsured used $116 billion in health care in 2008, a cost that insurers pass on to the insured through higher premiums.  They will say the new law rights this inequity and serves a clear public interest.  Opponents will contend the mandate is a power not expressly granted by the Constitution and thus void.   If the court goes against the Medicaid mandate it will be overturning a principle it established earlier, when it allowed the federal government to threaten to withhold highway funds from states if they had legal drinking ages under 21.

Finally, the severability issue will determine whether the whole law must survive or fall as an indivisible whole, i.e. whether certain issues can be "severed" from the law and separately thrown out while keeping the rest in force.  If the court rules against the insurance mandate, what about the other requirements?  Will that strike down the provisions requiring insurers to cover children on their parents' plan until their 26th birthday, the bans on excluding people from coverage due to pre-existing conditions and of dropping them from coverage if they get sick, or the percentages insurers must actually spend on health care?  Those are the kinds of things that will be decided on the severability question. 

All in all, the case and eventual ruling figures to be one of the most momentous in decades.  Health care for 50 million people and the scope of congressional authority are clearly at stake.  The principles allowed or curtailed will shape policy and people's lives for many years to come.  



       

New York Mosque Controversy

President Obama was, of course, right to say that a Muslim group has a right to build a mosque in New York City two blocks from the former site of the World Trade Center towers. Our First Amendment right to freedom of religion guarantees this. Whether it's two blocks, ten blocks or fifty blocks is irrelevant. If people want to build a church, mosque, synagogue, temple, ashram or any other religious structure anywhere in America that isn't on public land they are allowed to do so.

Most Americans apparently do not agree. A CNN poll this month found that 68% "oppose this plan" while only 29% "support" it. Because of the wording of the question that may include people who may agree the Islamic group has a right to do so but don't think it is a good idea. The President himself said his defense of the right to build the mosque does not necessarily mean he thinks it is a good idea. "I was not commenting and I will not comment on the wisdom of making a decision to put a mosque there," he said. I was commenting very specifically on the right people have that dates back to our founding."

When you have rights and freedoms you have to stand behind them. You cannot withhold them from entire groups because some extremists or fanatics committed an outrage. Consider this event from Middle Eastern history.

On July 15, 1099 forces of the First Crusade broke into Jerusalem. After eliminating the last pockets of armed resistance on the Temple Mount, Crusader knights and soldiers began a massacre of Muslim and Jewish civilians. According to Christian eyewitness Fulk of Chartres, "In this temple almost 10,000 were killed. Indeed if you had been there you would have seen our feet colored to our ankles with the blood of the slain. But what more shall I relate? None of them were left alive; neither women nor children were spared." Estimates of the civilian toll throughout the city range from 10 to 30 thousand.

How many Americans do you think would agree that Christians should not be allowed to build churches in Jerusalem after such a massacre? That's right, none would. You either believe in freedom of religion or you do not. It is one of the cardinal principles of American civic values, which is why it is in the very first article of the Bill of Rights. And it has to apply to everyone.

Prosecutions of Bush Administraton Figures?

The real question is not whether the U.S. government kidnapped people from foreign countries without extradition, tortured captives, turned others over to third parties for torture, engaged in illegal surveillance of American citizens on U.S. soil, held suspects without due process, and lied about what it was doing. No, none of that is even in question anymore. The real question is, what should we do about the Bush Administration's violations of treaties, laws and the Constitution?

Opinion is divided on the matter. It runs the entire gamut. Representative Henry Waxman would like to send people to jail. Senator Patrick Leahy, Chair of the Judiciary Committee, wants to hold congressional inquiries with the power to grant immunity to those who testify. President Obama says, "no one is above the law," but by saying he wants to, "look forward, not backward" he signals his preference not to delve into these matters. Speaker Pelosi said impeachment and presumably prosecutions are "off the table." They could derail the Democratic legislative agenda. That explains Obama's reluctance, too. They have a lot of big issues to solve and do not want to expend precious political capital. Most Republicans have made it clear they are vehemently opposed to any investigation or proceedings. Some, such as GOP congressional leaders warn it would become a partisan "witch hunt" that would take over our political discourse and irrevocably poison interparty relations. The former president and vice president and the hard core right feel that whatever was done was completely justified on an 'end justifies the means' argument.

Each of these is a valid argument from its own perspective. Congressional investigations would initiate a partisan cat fight. This might well delay or gum up the Obama administration's legislative program. It would certainly spark heated debate over the airwaves and throughout society. But to do nothing is to excuse, condone and perhaps encourage more wrongdoing. What is the right thing to do?

The right approach is to leave Congress and the President out of it and turn the Justice Department loose on it. If crimes have been committed then the place for them is court. Leave the politics to fall where they may.

If these depredations were committed by organized crime or common thugs, what would the response be? Would there be anyone arguing against prosecuting kidnappers, trespassers, peeping toms, identity theft hackers and sadistic torturers? Of course not. To argue the contrary is to accept Richard Nixon's famous dictum, "If the president does it, it's not illegal." The next step after accepting that is totalitarianism.

I felt for a long time that Gerald Ford's pardon of Nixon was warranted. The nation had been through a year and a half of debilitating fighting over Watergate. I felt it was time to get it behind us and let the healing begin. I felt being forced to resign was punishment enough for someone as compulsively ambitious as Nixon.

But today I feel I was wrong. Important people in his administration drew the opposite conclusion, that the President's power to do whatever he pleased, legal or not, had been compromised and needed to be restored. Twenty-six years later, Dick Cheney and Donald Rumsfeld came back to get to work on that. And George W. Bush fell right into line with them. After all, not even Nixon had to suffer the personal humiliation of prison. Immense power beckoned without personal risk. That is why criminal investigations must go forward. There has to be a personal deterrent for people contemplating serious crimes. Any conservative would normally agree with that.

So no, dispense with congressional investigations. They are toothless and can only detract from the critical reform and recovery legislation the country needs. Keep the current President out of this. Neither does he need distraction from his primary duties and responsibilities. Let the Justice Department under Eric Holder begin building criminal cases. If sufficient evidence turns up, file charges. If former officials are convicted, send them to prison. If the often self-proclaimed greatest democracy in the world shrinks from enforcing its own laws and Constitution against the powerful, then what is it, really?

Obama Hits the Ground Running

Barack Obama hasn't wasted any time getting to work on living up to his oath of office--you know, the part about protecting and defending the U.S. Constitution. First, to make sure there was no question about it, he asked Chief Justice John Roberts to the White House to administer the oath properly, to remove any uncertainly lingering from the jurist's mistake-filled performance at the U.S. Capitol on Inauguration Day. Then came the first repair work. Obama is getting busy with the glue and tape to put the Constitution back together after the shredding it took under the Bush-Cheney junta.

On the campaign trail Obama frequently promised to redress the wrongs initiated the past eight years. He spoke of restoring adherence to the Constitution and the rule of law. In the Inaugural Address he excoriated the "false choice" between our values and our defense.

Today he took four specific actions designed to restore government adherence to the U.S. constitution. This is most welcome. A government which does not respect and follow its constitution is a government on the way to dictatorship. The four actions were:

1) Ordered Guantanamo Bay shut down
2) Banned torture
3) Ordered a full review of detention policies and procedures
4) Suspended all military tribunal trials pending thorough examination of the history and propriety of the procedures involved.

He also followed new Secretary of State Hillary Clinton to the State Department. Hillary got a rock star reception from 1,000 State Department employees by telling them, among other things, that their professional expertise would be welcome once again, that this administration was serious about diplomacy and development and that she welcomed a good debate over honest analysis. After two terms of pressured analysis, imposed conclusions and forced compliance with official dogma our foreign service pros were ecstatic. If you saw this on television you can attest that the diplomats and analysts were rapturous.

This is all an exceedingly good sign of things to come. Honesty. Ethics. Principles. Free discussion. Legality. And all on the second full day in office. This is starting to sound like the United States of America again.

Not All Heroes Carry an M-16

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 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 to the United States Constitution)

The Bill of Rights, the first ten Amendments to the Constitution, are the primary legal bulwarks of our personal freedoms. The Fourth Amendment of these ten is the principal obstacle to the establishemnt of a police state such as exists under totalitarian governments along the models of Nazi Germany and Stalinist Russia.

It is therefore to the Constitution that all elected officials, military personnel and government employees take an oath of loyalty. It is not to a leader, political party or even the nation itself that the oath is directed. It is to a higher authority, the authority of the very ethical, legal and moral principles that animated the original Patriots and are expressed in our foundational charter that allegiance is sworn.

Thomas Tamm took his oath seriously. A former standout prosecutor and Young Republican County Chairman, the Justice Department Inspector with Top Secret clearance was tasked with overseeing surveillance on suspected terrorism. Upon noticing that American citizens were being spied on in direct violation of the Constitution and without recourse to the FISA Act provisions for oversight, he brought this to the attention of superiors. When told the practice was "probably illegal" and to "drop it" his conscience would not let him rest.

Unable to make any headway at Justice, he eventually went to a phone booth in a subway station and tipped the New York Times. The exposure of the Bush Administration's unconstitutional abrogation of its oath of office to "preserve, protect and defend the Constitution" created a political storm. It has also cost Tamm his job and subjected him to constant harrassment and threats by the FBI. Michael Isikoff tells Tamm's story in Newsweek. You can see the article here.

Tamm may be charged with revealing state secrets. He explains himself with, "If somebody were to say, who am I to do that? I would say, 'I had taken an oath to uphold the Constitution.' It's stunning that somebody higher up the chain of command didn't speak up." Meanwhile, those at the top of that chain whose malfeasance he exposed are negotiating with publishers for seven-figure royalties for the rights to their memoirs.

Not all the heroes of freedom are in a desert toting an M-16.

Supreme Court Gun Ruling

I've been asked to comment on the recent U.S. Supreme Court ruling on the Second Amendment, the right to bear arms. For the first time, the high court definitively clarified its Constitutional understanding of the Amendment, albeit in a narrow 5-4 decision split right down the middle of its customary conservative-liberal ideological divide. The short synopsis of the ruling is that individuals have an inalienable right to possess firearms, though reasonable regulations can be imposed on that right. Washington D.C.'s ban on gun ownership was ruled unconstitutional.

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

The crux of interpreting these 27 words has always hinged on the militia reference. Gun control proponents have stressed "a well regulated militia" in their arguments, holding that the right is a collective one pertaining to a state militia. Gun ownership proponents have minimized the militia reference and concentrated on "the right of the people to keep and bear arms" as definitive in itself in establishing an individual right.

The majority opinion written by Justice Antonin Scalia last month comes down on the side of the latter, that individuals can own guns whether or not as part of a militia. Scalia wrote, "The Second Amendment protects an individual right to possess a firearm unconnected with a militia..." He qualified this some by continuing, "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapons whatsoever in any manner whatsoever and for whatever purpose." There can still be bans on automatic weapons and sawed-off shotguns, and on carrying firearms into schools or government buildings. But his opinion did also overturn the D.C. requirements that guns at home must be disassembled and/or equipped with a trigger lock. (Some guns in the District were still legal, having been grandparented in when the ban was originally passed.)

Justice Stephen Breyer, in his dissent, said, "In my view, there simply is no untouchable constitutional right guaranteed by the Second Amendment to keep loaded handguns in the house in crime-ridden urban areas." The two views are characteristic of the long-running debate. By 5-4, Scalia's view is now the law of the land.

Some research into the intentions of the founders reveals a difference of opinion about the motives for the Amendment between Eighteenth Century Republicans and Federalists. Those of a Republican bent agreed with Thomas Jefferson's "Democratic-Republicans" that national government power should be kept weak so as not to become a threat to the people's liberties. To this end, James Madison, Noah Webster and Patrick Henry wrote and spoke in favor of the Second Amendment as a means to keep state militias well-armed against the possible encroachments of a national army and potential federal government tyranny.

On the other hand, Federalists, who favored a powerful national government and feared that democracy might degenerate into "mob rule," wanted a strong, well-armed militia handy to put down possible insurrections. Prominent Federalists such as Alexander Hamilton and John Adams wrote and spoke for the Amendment for these reasons. What we therefore see is a convergence of interests between two viewpoints that happened to favor the same remedy for essentially opposite purposes, both connected to the "militia" concept. In popular usage and understanding, however, the Second Amendment has generally meant the right to personal gun ownership for personal reasons to the majority of Americans, and it is this view the Court has ratified.

Where Do Our Rights Come From?

In America there is a good deal of preoccupation with rights. The American Revolution was primarily fought over a conception of rights. The Declaration of Independence mentions "inalienable rights, among them life, liberty and the pursuit of happiness." The Constitution's first ten Amendments were passed as a package and seek to spell out what the nation's fundamental rights are. They are usually called the "Bill of Rights." Both our major and nearly all our minor political parties compete in part by promising to adhere to what they consider to be the correct interpretation of the original meanings of these rights.

The most popular belief about the origin of these rights among the American people is that they come "from God." We hear mention of our "God-given rights." The Declaration says that the "inalienable rights" apply to "all men" and have been "endowed by their Creator." There is no question that Judeo-Christian thought is an important underpinning in the idea of individual rights. The belief that people stand equal before God and have value to Him long predates the United States, and has much to do with the ideals of individual rights appearing primarily in the Western World.

Yet these ideals did not translate into legal and political rights for a long time. Feudalism defined a rigid class system in Western society for centuries even though that society was strongly Christian. After that, the idea of monarchs ruling by "divine right" was the pre-eminent political understanding in Western Christian society after feudalism began to decline. It was only when Enlightenment rationalism was applied to moral and political discourse that a connection between Christian morality and political freedoms was established in most people's minds. Up to that time ideas like rights and liberties were mainly restricted to the realm of theology and relations between kings, nobles and the Church. It was only after philosophers like John Locke demonstrated the logic of applying these concepts to civil society that they caught on in the popular mind. He is, after all, the writer who came up with the "natural rights" formulation that included "life, liberty and property," and which formed the basis of Jefferson's similar formulation in the Declaration.

The important thing to keep in mind is that historically, nobody has ever been "granted" any of these rights. Freedom of speech and religion, equality under the law, trial by jury, freedom from unreasonable search and seizure without probable cause, habeas corpus, the right to vote, in short, every limit on royal or representative governmental power over individuals has only come after persistent and often bloody resistance to that power. And once achieved, such limits have had to be maintained and supported by consensus or they have been lost. A citizen asked Benjamin Franklin what kind of government had been set up by the Constitutional Convention. "A republic, if you can keep it," was the great man's reply. The record shows that rights are won and maintained only if they are staked out and tenaciously defended.

For example, the 14th Amendment's mandate of "equal protection of the laws" was of little avail to African Americans for nearly a hundred years after its passage due to the hostility of much of the majority to the measure, or to Japanese Americans during the war hysteria after Pearl Harbor. The Bush administration's disregard for habeas corpus and constitutional requirements for jurisprudence and the prevention of torture show just how easily "inalienable rights" can be abridged by a government that whips up fear in order to increase its power and latitude for action.

No, rights are not granted by God. Peoples' idea of what is godly may underlie the rights they demand, but rights have to be fought for by humans here on earth to be won and often fought for again to be sustained. As John F. Kennedy said in his Inaugural Address, "Here on earth God's work must truly be our own."

Big Issues of 2008

These big issues will define the playing field for the 2008 elections and determine whether America rebounds or falls into decline.

THE ECONOMY. For the US to stay competitive in the world it will need to pay far greater attention to education. The brightest must have access to high-quality education at all levels. Vocational education must respond to the needs of developing markets. Societal attitudes will have to change to foster these priorities.

The middle class squeeze will have to be addressed. To accomplish this, tax and fiscal policy will need to find a better balance between workers (more than now) and investors (less). Deficits will need to be reined in to control inflation. There must be a more pragmatic approach to regulation, applying it where helpful to consumers while avoiding its excesses. People must be protected from predation.

A backlog of infrastructure restoration must be undertaken. Transportation, water, utilities and communications in particular need attention. Anyone who has been abroad recently knows the antiquated, inefficient and deteriorating state of America's systems compared to those of Europe, Japan and much of emerging Asia.

HEALTH CARE. All Americans must have access to affordable, high-quality health care. All the other developed nations have done this at an average of half the cost of our system. This is a necessity on moral and practical grounds, and it cannot happen without strong government involvement. The American people deserve and are coming to demand no less.

ENERGY/ENVIRONMENT. America needs an effective energy policy. It must be pursued with at least the importance applied to the space program on the 1960s and perhaps approaching the desperate urgency of mobilization during World War II. Our economy faces implosion if petroleum prices continue to rise as they have, and there is relatively little oil left to drill domestically. We simply must develop sensible alternatives. Government outlays and mandates will be required to achieve this.

The same holds true for the other side of the coin, the increasingly harmful effects of climate change caused by the infusion of increasing amounts of hydrocarbons into the atmosphere. Global warming is already here and will continue to worsen. The US must join in the successor agreement to the Kyoto Accords. Drought, the increasing frequency and intensity of hurricanes, sea level rise and the mass extinction of species are currently underway. Mandates on fuel efficiency are necessary. Wind, solar, tidal, geothermal and truly efficient biofuel sources must be fostered. Mass transit has to be expanded. An increase in nuclear power generation must be considered. The next administration will have to take strong action. Voluntary targets are not enough.

IRAQ. The American strategic blunder in Iraq must end. It is a financial drain. It is degrading the effectiveness of our Army, Marine Corps and National Guard. It is the primary reason for our international isolation and a recruiting bonanza for new generations of anti-Western jihadists.

More than this, the mentality that led to the war must be expunged. We must not come to believe that the initiation of unprovoked wars in order to reconfigure the world to our liking is a fruitful, sustainable or ethical foundation for pursuing our international aims. That is a path trodden by many a nation throughout history, and it has invariably led to their eventual destruction.

THE U.S. CONSTITUTION. The U.S. Constitution must be followed. The principles it enunciates are the reason the nation was founded. We are no longer the United States of America but something else in direct proportion to the extent that our government violates it and that our society permits that government to do so. We must particularly adhere to its tenets on search and seizure, habeas corpus, the due process of judicial proceedings and the rule of law. The Executive must follow and obey the laws passed by the Congress. The next administration must repudiate and reverse the encroachments on the people's rights undertaken by the present one.

Tortured Logic

On Saturday President Bush vetoed legislation that would have prohibited the CIA from using waterboarding and other coercive interrogation methods beyond the 19 techniques approved in the Army Field Manual. On Tuesday the House of Representatives voted 225-188 to override the veto, a 37-vote majority but 51 votes short of the 2/3 necessary to overcome the president's veto.

Because of the bill's failure, the intelligence authorization contained in it will not go into effect. Television ads quickly appeared blaming House Speaker Nancy Pelosi (D-CA) for leaving America unprotected against terrorists. The ads called on citizens to contact their congressional representatives to urge passage of an intelligence bill without the restrictions.

In his Saturday radio address Bush explained, "I cannot sign into law a bill that would prevent me, and future presidents, from authorizing the CIA to conduct a separate, lawful intelligence program, and from taking all lawful actions necessary to protect Americans from attack."

Bush's logic is specious on two counts here. First, it was not congressional Democrats who scuttled the Intelligence Authorization bill. It was Bush's veto that did that. They passed a bill that continued U.S. intelligence efforts except for the banned practices. He decided he would rather have no bill than agree to one that does not let him torture.

Second, U.S. law already specifically bans waterboarding. It is not lawful. His use of the term "lawful" twice in one sentence does not change that fact. Congress passes the laws. Bush's opinion that something ought to be lawful does not make it so.

In terms of the presidential race, both Hillary Clinton and Barack Obama supported the ban. John McCain, who was tortured himself as a prisoner of war and who used to oppose torture, sided with Bush. When told earlier in the Iraq War that Americans should torture captives because insurgents there sometimes did so, McCain famously said, "It's not about who they are. It's about who we are." Who we are has apparently changed, in his view.

As columnist Eugene Robinson points out, if Osama Bin Laden were to perform such dangerous and sadistic practices on Americans it would be regarded as evil. Bush asks us to believe, however, that if we do it it is moral. His tortured logic is as unpersuasive as it is hypocritical.