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Words and Power

January 29, 2002

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 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 hasn’t 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 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 Convention?

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.

[Breaker quote: How the 
government manipulates law]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.

Joseph Sobran

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