Public Comment

Government vs. the Constitution

By Steve Martinot
Friday June 14, 2013 - 07:54:00 AM

Werner Heisenberg, one of the founders along with Schroedinger of Quantum Mechanics, once said, "The very act of observing disturbs the system." He was referring to the fact that the instruments that we use to gather data about a system under study (in life or in the laboratory), changes the system being studied, and what we observe is the changed system, changed again when we seek to observe those changes. 

A different person said the same thing just a few days ago, during the week of June 6, 2013, a man named Ed Snowden. He explained that the process of government surveillence that he was exposing to the light of day was imminently disruptive in a negative sense of the system it pretended to defend, and of the principles of democracy that were the basis for that system. 

Daniel Ellsberg echoed that sentiment at the meeting on our lost civil liberties on the evening of June 11, 2013. he spoke about the movie, "The Lives of Others," a story about the East German Stasi (secret police), that had collected data on people continually, not to locate criminals, but to find out ways of manipulating people to do their bidding, to blackmail them by threatening to disrupt their social relations, in order to turn them into snitches (aka "informants"). Information about one's social relations can be used by power to manipulate people, as well as to frame them for various "crimes" by playing on the informant's "false testimony." 

When government sinks to that level, it is because it is in the throes of a profound cultural crisis. That crisis consists of two dimensions, a sense of desparation and a necessity for impunity. An organization that assumes or is granted impunity is an organization that has become a law unto itself. For government to affirm (in practice if not in words) a right (aka a need) for impunity means that, for that government, statutory law and the Constitution it is based on has already become a dead letter. The government becomes desparate through that assumption of impunity, because it can brook no undermining of its power or its sanctity. The former norms of behavior, supplanted by impunity, become nothing but a threat. To the extent the government has granted itself impunity, the US Constitution itself becomes a threat to it. 

At that point, any suggestion concerning the virtue of the former norms contained in that Constitution incurs a sense of desparation. First and foremost, for that desparation, the people are locked out of having any influence. They are by definition outside the law as soon as the government becomes a law unto itself. 

The effect is to substitute impunity for law, or rather impunity law for constitutional law, and then deal with people who still think the Constitution is relevant. It is a cultural crisis because it means that the norms of political ethics, of justice, of democratic procedure by which the government had established itself have become so antithetical to political stability that they must be turned upside down. The people are put in a position of living without what they assume to be the case, and living with what they assume they are protected against. All becomes oxymoronic, the criminalization of Snowden, of Wikileaks (cyber-terrorism), of Afghanistan and Iraq (to render naked aggression an act of self-defense), of the Cuban Five (convicted without evidence of any wrong-doing), of Cuba itself (put on a terrorist-state list for defending its sovereignty), of black and brown people (generalized profiling), Guantanamo prison (its wholesale violation of habeus corpus, UN Human Rights and anti-torture treaties). In all these cases, the victims could call upon the rights guaranteed by the US Constitution to charge the US government with criminality in what it has done to them. The list is endless, extending from the largest military establishment in history to the largest prison system in history to the largest public debt in history, to the largest death row on the planet. 

What has put this culture into crisis? We can list four major things. The inner ethos of each will stand in diametric contradiction to the most fundamental principles of democracy (regardless of whether they were ever practiced -- but they have been taught in civics classes everywhere as inherent in the culture of the US). 

One is the rise of the corporate structure to total domination of the economy, with its valorization of non-responsibility for what it does, nor for the people under its auspices. That ethos of non-responsibility brings with it a rigid hierarchy. Democratic self-governance, on the other hand, is founded on responsibility for its human constituents and an ideal of horizontal parity and equal opportunity. A second is the permanence of militarism, whose purpose is the production of obedience, subservience, the production of death, an ethos of the dispensibility of any individual along with the cheapness of life, where democratic self-governance begins with the sanctity of human life. A third is white supremacy, and the reconstruction of that misbegotten anti-democratic notion that has been in progress since it was undermined by the civil rights movements; this is done by fostering a "war on drugs" (a "New Jim Crow"), a policing system based on profiling and exacted obedience (a new color line separating those whose humanity will be discounted (the profiled) from those whose humanity will be respected), and the development of the largest prison system in history, a structure of segregation raised to the level of mass internal exile. Finally, there is the dissolution of social coherence implicit in the deindustrialization which the US has undergone (industry moving to other lands), dissolving the class cohesion of cities and communities through the destruction of the unions and steady employment for which were substituted temporary and precarious access to income. 

Today, the primary reason the police give for acting brutally or shooting people is that they "became uncooperative," which implicitly includes running away. A lethal demand for "cooperation" is a tacit admission that the norms of operation or activity the government has established for itself do not attract cooperation in and of themselves -- so it must be imposed. But that implies that those norms (rules, laws, the sanctioning of arbitrary aggressions) are at serious odds with humane practice. 

Ed Snowden has revealed a piece of this cultural crisis, not in disclosing the existence of a program of government surveillence, because that has been going on under the name of Echelon for decades, but by eliciting two responses to his actions by the government, first their labelling him a traitor, and second, by proclaimed their intention to continue the Prism Project, and its massive surveillence of the people. 

Insofar as his action defends the 4th Amendment, he stands as an icon to the proposition that treason to the government is loyalty to the people. But that simply highlights the fact that it is mistaken to think that the Constitution is broken, or that the system is broken. The Constitution is being ignored. It has been rendered an alien document, something which belonged to a now defunct system. It is in that sense that the Constitution has become a dire threat to the government. If the system were simply broken, it could be fixed. If the Constitution has been thrown away as a dead issue, then we confront a somewhat different problem.