Benjamin Franklin, upon exiting the Constitutional Convention (one of several reported versions of the statement)
Perhaps my favorite work has been teaching political science part time in a small-town community college. On the first day of class, I conduct a thought game in which I project a picture of the original United States Constitution and ask the students what they are looking at. After some leading questions, we eventually get to "a piece of paper." Then I ask how this paper protects their rights, especially since the President commands the most powerful military in the history of the world. They say the courts enforce the Constitution, and enjoy it when I draw the picture of a bunch of middle-aged men and women in goofy black robes beating back an army with rolled-up pieces of paper.
What then? What protects us? What preserves democracy and sovereignty of the people from government overreaching? Fairly soon we get down to the truth about government under the rule of law and a compact based on foundational principles.
That ultimately the will to be bound to the ideas and agreements reflected in the Constitution is what protects us. That the decision to hold that will must be made anew each day and for each situation pitting the Constitution's ideals against the perception that a more immediate or important end justifies breaching them. That, at bottom, the will to be bound to the principles of our social compact is all we have.
The fact that our form of government has prospered for over 200 years based solely on a willingness to abide by core principles (with a couple exceptions), even when following them has meant short-term or personal hardship, is the most beautiful evidence of our good faith and good will as a people. But precisely because it depends wholly on both keeping and enforcing that good faith and good will, our continued existence as a people-ruled republic is inherently fragile and susceptible to clever purveyors of fear and expediency.
Such clever purveyors are now in power in the executive branch and they are either supported or insufficiently resisted by many to most in the legislative and judicial branches. For all the evidence, they appear to be doing the bidding of a small and extremely wealthy elite that has co-opted a larger messianic religious movement, both of which believe their treasure and treasured beliefs cannot be trusted to the masses or the rule of law and are better protected by the unchecked rule of men beholden to them.
It has always been this way and the people have held on to sovereignty only for so long as they have insisted that their government abide by fundamental principles regardless of circumstance or personality. The great Roman Republic was lost to a dynamic general and president (consul) preaching the need for an interim dictatorship to ensure stability. European democracies fell to charismatic autocrats taking advantage of temporary hardships to consolidate government power and funnel the people's assets to their wealthy patrons. Each time the will of God, or the Gods, was proclaimed to support the burgeoning tyranny.
Our President is not will-ing to abide by some of our most fundamental rights, principles and societal agreements. Perhaps the most consequential and stealthy violation has been the erosion of the right to the Writ of Habeas Corpus in the Military Commissions Act of 2006. That Congress, including many Democrats, so casually voted for it shows the Legislative branch lacks sufficient will to be bound as well. It is safe to conclude that many lower federal courts will uphold it and that the executive-friendly Supreme Court may well go along. Thus, the will of our governors to remain bound to the Constitution is somewhere between going and gone.
Habeas corpus is crucial because it is the right that allows the assertion of rights. It says that the government cannot hold a person in custody without giving that person an opportunity to challenge the legal basis of the custody in court. Any other right, including the right to be convicted of a crime only after a fair trial and with proof beyond a reasonable doubt, is meaningless if the person being held cannot access the only venue in which his or her rights may be asserted: the courts. Please understand that without habeas corpus, you, yes even you white United States' citizens, can simply be taken away by the government, locked up, denied access to the courts, a lawyer, or any other human being, and they can do this without ever telling anyone it happened. (For more information, check out a great article by Thom Hartmann on habeas corpus and the Military Commissions Act at Commondreams.org, Monday, February 12.) Do you really have freedom of speech and assembly, freedom from unreasonable searches and seizures, from cruel and unusual punishment when you can be imprisoned arbitrarily and secretly?
This is for real, folks. Pay attention. You can now be legally disappeared in America based on a law proposed by our President and passed by our Congress under all the procedures in the Constitution. Constitutional process is being used to dismantle constitutional government; will is all we have.
So our President and Congress have shown a lack of will-ingness to abide by the most fundamental right we have under our social compact. The Courts will either fall in line or be ignored (the President fears no paper), as with still-dungeoned U.S. citizen Jose Padilla. This means that we only have the will of the people left.
Do we have sufficient will to stand up and insist that our government honor the very contract under which they obtained power, or will we allow our fear and love for temporary comforts to place us further under the power of would-be tyrants? Believe me, people, I am asking myself the same question. So far, the newly empowered Democrats are showing that elections aren't enough, and more assertive measures may be required. It won't be easy, but then no one said keeping a republic would be.