Solutions for a Nation in Crisis

© Copyright 2010 by Kelly GerlingPhoto for July 4 Article on Sovereignty

What kind of crisis are we Americans experiencing?

US government military forces and intelligence agencies in Afghanistan and Pakistan select targets with large percentages of civilians and kill them, along with people suspected as being members of militias resisting the US occupation. The US government holds prisoners in Guantanamo and Bagram Air Force Base for years who have not been charged with a crime. The government tortured prisoners repeatedly, and President Bush and Vice-president Cheney admitted they ordered it. President Obama and his officials drew up a list of US citizens to be killed on sight.

Murder-by-drone; and holding prisoners without charge; and torturing prisoners; and targeting American citizens for assassination without any due process, are clear, admitted crimes and violations of explicit laws. And they are not enforced by anyone.

Which laws are not enforced?

Here is an example. Take a look at the 1996 War Crimes Act, (just one page) and consider the actions of Bush/Cheney, and Obama/Biden in violation of the Geneva Conventions and protocols. The extrajudicial assassinations by drones and other airstrikes are clearly violations of the War Crimes Act. Yet neither Congress nor the Supreme Court nor the Attorney General has acted to enforce the laws our recent Presidents and Vice-Presidents vowed—under oath—to enforce, as did every member of Congress and every member of the Supreme Court. What does this mean? Simply put, this means we have a profound and blatant crisis in our nation.

And this crisis is not limited to a failure to stop criminal foreign policy decisions. On domestic policy, Congress, the President and the Supreme Court continue to make decisions against the will of the majority of Americans. Americans wanted an expansion of Medicare or a robust public option for health insurance. But the bill that passed had neither. Americans want private corporate spending on elections limited but the Supreme Court declared that state laws, like Arizona’s, limiting money in elections, and Congressional limitations on spending in election cycles are not allowed. And on electoral policy, Americans want change the government is not providing, starting with a desire for the direct election of the president, term limits for people in Congress and federal judges, and a multi-party system. Instead of getting the government we want to govern ourselves according to our wishes, the American people get a corporate-controlled, corrupt, semi-totalitarian, plutocracy where we have the best government money can buy.

Perhaps we should reflect on the key words of the Preamble of our Declaration of Independence which says that “we” as “one people,” who are sovereign, have the inherent “inalienable” right to “alter or abolish” OUR government. As it says:

“deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it . . .”

What kind of crisis are we experiencing? It is a crisis of sovereignty.

I call on progressives to explore the most basic question of sovereignty.

Who or what is sovereign in America?

There are three options: 1.) The government via Congress, and/or the President, and/or the Supreme Court. 2.) The Constitution as a document. And 3.) We The People.

If the answer is “3,” then Article V for amending or replacing the Constitution cannot be exclusive with its up-to-95-percent supermajority for approval.

How can We The People exercise our sovereignty as independent citizens with an inalienable right to alter our government ? (I am not in favor of abolishing anything at this point.)

Akhil Reed Amar, a law professor from Yale has done a thorough analysis of this question and says the answer has always been obvious:

By. Majority. Vote.

That is, after a People’s Asssembly under Amendment I to deliberate about problems and fixes,  The People of America, as one people, can alter our government to restore our government to suit us—an assumed right proclaimed explicitly in the Declaration, and presumed by the Constitution’s Preamble, Article VII, Amendments 1, 9, and 10.

Amar makes this argument in his 1998 book For the People: What the Constitution Really Says About Your Rights. He made a similar argument in 1988 in a paper called Philadelphia Revisited.

Amar argues, it says nowhere in the Constitution that Article V is the ONLY means of altering the structure or dynamics or the rules in our Constitution. Therefore the right to alter or abolish remains. But how do we enact this right, this sovereignty, which cannot be given up (thus being “inalienable”)?

I agree with Professor Amar, that as one people, We The People of the United States can fix our government by amending or replacing our  Constitution by deliberation in an Amendment I people’s assembly and a subsequent referendum to decide to fix our problems. Such fixes can include the obvious and more: create a new national court, like Germany’s, with the power of prosecution, to enforce treaties and international laws; create a mechanism for recalling high public officials like many states can do for their governors; ban private money from elections, lobbying and influencing government officials in any way; create public financing of all elections; create a true, non-corrupt multi-party system; prohibit money from being interpreted as representing speech, but rather as the diminishing of the speech rights of individuals; restructure the government so we have one representative body that is primarily accountable for the government’s policies (so they can’t pass the buck under the “balance of powers” pretext for evasion of responsibility), and more.

In the 1990s, New Zealand’s people exercised their sovereignty to get their MMP multi-party democracy electoral system. Is the culture or government of New Zealand so superior to America that the New Zealand People can rise up and alter their government according to their wishes and we Americans cannot?

The Constitution’s primary architect, James Madison, attempted to insert a prefix to the Preamble of the Constitution at the time of the adoption of the 10 amendments that became the Bill of Rights. This prefix said: “That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government . . .” It was dropped, in part, because they thought it to be redundant.

In a letter to James Madison, Thomas Jefferson stated that “It is my principle that the will of the Majority should always prevail. If they approve the proposed [constitution] I shall concur in it chearfully, in the hopes that they [a majority] will amend it whenever they shall find it works wrong.”

The Virginia Declaration of Rights, Article Three states: “[W]henever any Government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most condusive to the publick weal.”

This was written by George Mason, the other primary author of the Bill of Rights, along with James Madison. The Virginia Declaration of Rights was adopted by unanimous vote in 1776. It is still in force in Virginia.

Are the people of New Zealand, James Madison, Thomas Jefferson, George Mason and the Virginia Declaration of Rights, all wrong on this issue of sovereignty?

If the answer to this question is no—if they are right—then how can we Americans learn and gain the courage to rise up, by majority vote, and assert our own sovereignty as one people and fix our corrupt, broken, plutocratic, corporate-controlled, militaristic government?

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