The question I posed in an email list on the Obama Campaign site was:
What is the over riding law of the land?
1) The Constitution & Bill of Rights.
2) Laws passed in Congress and signed into law without a signing statement
3) Laws passed in Congress and signed into law with a signing statement
4) Presidential " decrees " that may go counter to the written law
With regard to the first amendment which denies Congress the power to pass any law abridging our right to petition for a redress of grievances, wouldn't any "immunity" bill which specifically says we can't sue to petition for a redress of our grievances be a direct violation of the first amendment, thus an illegal and unenforceable law?
How do the recent ( post 9/11 ) laws that attack various portions of the constitution, absent any constitutional amendments, hold up in the first place.
Another question, the constitution requires members of congress and the president to take an oath of office to uphold the constitution. Does that oath carry any legal obligation with it or is it empty window dressing?
Response provided by and published with permission of:
Edward L Siegel, MD
Assoc. Professor of Radiology & Surgery (ret)
University of Kansas Medical Center
There was a time when the answer to the first question was a resounding #1 - but that was before our elected officials became the ugly stars that Hollywood wouldn't tolerate. Nowadays the constitution has become something of an impediment to the desired freedoms of our petty barons and princes in Washington who believe the laws are only intended to keep the rabble in order. In consequence, our government is no longer of, by and for the people. It is now the people's adversary.
I think your theory of the first amendment is sound, but how is it to be enforced. In 2004 if you were not a Bush sycophant you could find yourself removed from a parade route and corralled inside a fenced "free speech zone" under armed guard. Ultimately it is up to the courts to say what is and isn't unconstitutional, and their record is horribly suspect.
Your understanding is partially correct. The congress may write and the president may sign into law anything they wish. As I understand it, law are passed with the presumption of constitutionality. In order for it's constitutionality to be judged, somebody with "standing" has to mount a legal challenge. Of course, the more secretive the government, the more more difficult to prove standing. In one of the pending FISA cases the plaintiff accidently received government documents proving their case for standing. The judge required the plaintiff to return the documents and disallowed their use. If the challenge ever makes it to the SCOTUS, it's reception there will be based more on caprice than on the plain language of the law. { "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." } becomes {/"[T]/he right of the people to keep and bear Arms, shall not be infringed." } and they pretend the titles "originalist " and "strict constructionist." The court is one vote away from a judicial fundamentalist majority. One of the unique features of judicial fundamentalism is elevation of the executive to the head of government rather than the co-equal branch our founders envisioned. The unitary executive theory provides for an elected dictator, justified by the state of perpetual war. It argues that the president is commander in chief of the nation, not just the military.
I think my opinion on your final two questions is reflected in the first paragraph above. Consider that the power to make war is vested exclusively in the Congress of the United States by Article 1 Section 8 of the Constitution. During the run up to the Iraq war vote, which was not a declaration of war, the congress abrogated its responsibility and gave that power to the president, contrary to constitutional principles in general and the language of Art. 1 Sec 8 explicitly. During the debate, Henry Hyde, a Republican house patriarch, told his colleagues that a declaration of war is an anachronism! And a crony-chorus of chickenhawk pals joined him. In other words, even when it comes to the most profound decision a nation must make, they no longer trust the American system of government. Clearly with less at stake, they find the old rules all that less important.
How should we, as American Citizens, address the crisis posed to us by a Congress that no longer appears to consider the Constitution to be anything of value to them?
