Monday, April 19, 2010

Defending the Constitution (from the Birthers)

cross-posted at Dagblog

Today, as everybody who's ever lived in Boston knows, is Patriots' Day, the anniversary of the Battles of Lexington and Concord. That means that it's a holiday in Massachusetts and Maine, and it means that today is Boston Marathon day. (Go, Meb and Ryan! Go!) My beloved Red Sox are playing a morning game in Fenway, and all is right with my world.

It's also a day to honor the Minutemen and what they were fighting for in Lexington 235 years ago. The images of the American Revolution have been used a lot lately, most notably by the Tea Partiers, who claim to be defending the Constitution. But there are a number of important Revolutionary principles, principles that the original Minutemen fought and died for, that the Tea Partiers don't seem interested in.

One of the most important of these is civilian authority over the military. The Founders were very clear about this. Massachusetts in 1775 was under military rule, with General Thomas Gage appointed as Governor. The Founders' experience with military governors, and with state legislatures being overruled by the British Army, taught them how important it was to maintain the supremacy of civil power over military power. The army is meant to be answerable to the politicians, and never, ever the reverse. That's the American way. The Constitution identifies the President as commander-in-chief of the armed forces for this reason, to make it clear that the military are responsible to an elected official, and President Washington took great pains to establish that he held a civil rather than a military office.

This is why it is very important that Terrence Lakin, the Birther Lieutenant Colonel who has refused to deploy to Afghanistan, be court-martialed, even if doing so makes him a martyr for true believers on his side. Lakin claims to be defending the Constitution by refusing to follow the orders of a President whose eligibility he doubts. But nothing could be more opposed to the Constitution than an Army officer exercising a personal veto over the political process. Lakin's perverse reasoning is that since he doubts the outcome of a civil procedure (the election) his oath compels him to disobey. But his oath to the Constitution compels him to do exactly the opposite: it compels him to defer to nation's established legal processes, and to defend them. A soldier who refused to obey his or her orders from George W. Bush because s/he felt that Bush v. Gore was wrongly decided would be an enemy of the Constitution; the guiding American principle is that we make our decisions in the court house and the voting booth, and not by shooting each other. Any military officer who violates that principle needs to be punished, and if that leads to a wider debate, then it's a debate that we have to have.

(But weren't the Minutemen at Lexington and Concord fighting instead of voting? Yes, but they were fighting to be able to vote. Their goal was to restore the civil and democratic processes that military rule had overruled. That's the difference between the patriots of the 1770s and the self-described "Patriot" movement today. The American revolutionaries were fighting to restore a set of legal and democratic procedures, to which they owed their obedience and by which they promised to abide. The current Tea Party protesters are enraged by certain specific outcomes that our legal and democratic procedures have produced, and are expressing their unwillingness to accept or abide by the process when it displeases them.)

All of this goes especially for the group known as the "Oath Keepers," a collection of people serving (or having formerly served) in law enforcement and the military, who loudly proclaim their refusal to obey "unconstitutional orders." I would hope that any American would disobey blatantly unconstitutional orders, and that it goes without saying. If a United States President ever orders the Supreme Court Justices arrested, I would expect that President to be disobeyed. But what I fear the "Oath Keepers" have in mind is some right for individual soldiers, police officers, and National Guardsmen to unilaterally nullify lawful commands, to ignore laws and court orders that displease them. (I'm afraid of what the "Oath Keepers" would say if we asked them about the constitutionality of desegregating Ole Miss.) What the "Oath Keepers" appear to have in mind is a flagrant violation of Constitutional principle and a gross betrayal of their oaths. The military are never meant to dictate to the civil authorities. That's what 1775 was about, and 1776, and 1787.

So let's take a moment of Patriots' Day to speak fondly of the Constitutional principles that the Founders handed down to use: a peaceful Republic whose soldiers serve its laws instead of making them, a right to a free and fair trial by jury, the right of habeas corpus, and a commitment to honest, peaceful debate in the town square. Amen.

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