Words and Power
January 29, 2002

by Joe Sobran

     The first editions of Shakespeare's plays are so 
full of misprints, misspellings, obscurities, and puzzles 
that they have kept scholars and editors guessing for 
centuries. Emending the text, in the hope of recovering 
the author's meaning, has proved a daunting task. When 
should an editor stick with the first text, and when 
should he try to improve on it?

     Samuel Johnson, a common-sense conservative editor, 
preferred simplicity to cleverness: "I always suspect 
that reading to be right which requires many words to 
prove it wrong."

     You might say the same of constitutional law. 
Ingenious justices, politicians, and partisans have found 
many unsuspected meanings in the U.S. Constitution, which 
have required them to use "many words" to prove that the 
Constitution really doesn't mean what it seems to mean, 
or what people have traditionally taken it to mean. 
Sometimes the Supreme Court tells us it means the very 

     How can this be? Well, modern jurisprudence is a 
verbal form of alchemy. The "experts" can pick out a 
couple of phrases from widely separated clauses of the 
Constitution, combine them, find "penumbras" and 
"emanations" in them, appeal to precedents laid down by 
earlier "experts," and presto! Black means white, and day 
means night. And in the end, the government is more 
powerful -- and lawless -- than before.

     An innocent reader of the Constitution might think 
that the United States should wage war only if Congress 
declares war. But ingenious interpretations have enabled 
the U.S. Government to make war many times without a 
formal declaration. Congress hasn't declared war since 
December 8, 1941, the day after Pearl Harbor. Well may 
you ask whether we even live under the Constitution 

     Now the United States is at war without a 
declaration yet again. We may never see another 
declaration of war; but we'll certainly see plenty of 
war. Isn't this at least ... odd?

     Another legal problem has arisen with the capture of 
enemy troops in Afghanistan and their transfer to the 
American naval base at Guantanamo Bay, Cuba. Should they 
be treated as prisoners of war under the Geneva 

     Our government (it's "ours" in the sense that it 
controls us; I mean no implication that we control it) 
says the captives are "killers," not properly prisoners 
of war, so the Geneva rules don't apply. You might think 
all combat soldiers are killers, but it seems U.S. 
soldiers are, in the words of Defense Secretary Donald 
Rumsfeld, "fine young men and women who are serving this 
country." No fine young men (and certainly not women) 
will be found among those confined at Guantanamo Bay.

     Common sense might suggest that anyone captured in 
war is a prisoner of war. But our government wants to 
question them beyond the limits authorized by the Geneva 
rules, so it has redefined them as "killers." European 
governments and public opinion find this legal maneuver 
specious and objectionable -- a verbal manipulation of 
international law.

     Our government offers the argument that the 
"killers" weren't wearing uniforms or observing the laws 
of war themselves. So the enemy is bound by the laws of 
war even when the United States hasn't declared war!      

     Why not go all the way? Why not try the prisoners 
for "war crimes," specifically the crime of fighting back 
when the United States attacks?

     I don't have a copy of the Geneva Convention handy. 
(Do you?) All I know is what I read in the papers. But I 
know my government, and I know when it's up to its old 
tricks. With the aid of its clever lawyers, it can make 
any law mean whatever it wants it to mean.

     In that case, why bother having any law? The point 
is not just the treatment of the present captives. The 
real point is that a government that can act lawlessly 
abroad can also act lawlessly at home. And every 
violation of the rule of law today will furnish 
precedents for further violations in the future. Logic 
says it; experience proves it.

     But it's no use issuing dire predictions and 
warnings when people can't even see what has already 
happened. To those who feared that the New Deal had 
revolutionary tendencies that might destroy the 
Constitution, the writer Garet Garrett replied that the 
revolution had already occurred.

     He was right. The Constitution is long gone, and we 
are living in the advanced stages of the revolution that 
destroyed it.


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