Words and Power
January 29, 2002
editions of Shakespeares 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
authors 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 doesnt 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 opposite!
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 hasnt declared war since
December 8, 1941, the day after Pearl Harbor. Well may you ask whether we even
live under the Constitution anymore.
Now the United States is at war without a
declaration yet again. We may never see another declaration of war; but
well certainly see plenty of war. Isnt 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 Convention?
Our government (its
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 dont 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
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 werent wearing uniforms or observing the laws of
war themselves. So the enemy is bound by the laws of war even when the United
States hasnt 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 dont 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 its 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 its no use issuing dire predictions
and warnings when people cant 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
He was right. The Constitution is long gone,
and we are living in the advanced stages of the revolution that destroyed it.