Wednesday, March 3, 2010


I came across this bit in Glenn Greenwald’s column on the Salon magazine site. He mentions that on May 21, 2009, in a speech at the National Archives (with, therefore, the original document of the Constitution behind him) Obama “proposed "prolonged detention" for terrorism suspects who cannot be tried . . . The answer proposed by Mr. Obama would write an entirely new chapter in American law to permit "prolonged detention" [italics Greenwald’s].

Those in the SO community will quickly realize that this is not at all “an entirely new chapter in American law”: the civil commitment of SOs on the basis of flimsy diagnoses (see my February Posts on the DSM revisions), all fueled by the original, grossly inaccurate basic legislative Findings, has been going on since 1997.

In the Guantanamo and other detention cases (let’s not even get into how these individuals were actually ‘acquired’ – turned into coalition forces for cash or convenience, with very few caught actually doing ‘terrorist’ things and many captured fighting to get foreign troops off their soil or protecting their homes and families (!)) the equation has merely been altered with the ‘terrorist’ simply being substituted for the ‘sex offender’ variable.

With that substitution made, all the old familiar games are played: an impossibly vague and general category imposed on all the individuals, keeping up the ‘numbers’ and the ‘fear’; an impossible-to-defend charge ‘justifying’ the detention; courts which are in one way or another hugely influenced by the powerful hydraulic pressures of a public anxiety that is itself fueled by the government … the SO community has seen it all.

And as I’ve been saying, all of this is being spun (and by a Constitutional law professor at that) in cheerible and progressive tones as “an entirely new chapter in American law”.

But it is not “new”. It is rather old – so old that the Founders themselves rejected the entire option outright and specifically constructed the Constitution to prevent it’s ever happening here.

But – as has now been presumed for decades – the Constitution is “quaint” if it gets in the way of “meeting needs”. This seemed merely a “progressive reform” of the Constitutional vision and ethos in the Seventies as assorted political constituencies were seeking to get themselves a bigger piece of the pie; if the Constitution stood in the way of this or that sort of “right” – “economic rights” were the mantra back then – well, then it had to be changed. Which, anyway, was what progressive reform does: it allows new generations to refine and expand the Constitutional protections.

The kicker, of course, was that the Framing vision was that the government would be carefully circumscribed so that it would NOT interfere with political rights.

Those political rights did not come ‘from the government’ but were inherent in the Citizens as human beings. The government authority was caged – especially at the national level – precisely because of government authority’s historically well-demonstrated tendency to overflow its bounds and seek to control and define the lives of those over whom it claimed authority.

In the Civil War the Federal government was legitimately aroused to defend the polity from a coalition of seceded States; and in the process the government authority freed the slaves.

Although Lincoln had to be careful to establish his Emancipation on the grounds of his military authority in order to avoid the extended wrangling over the very real political question as to whether – in the absence of that state of civil war – the Federal government would have otherwise possessed any authority to free the slaves.

This may seem a bit odd to Americans nowadays. Freeing the slaves was surely a ‘good’ thing, so how could it be that the Constitution would or could hinder, let alone prohibit, the Federal government from achieving so worthy a goal?

But the Framers saw, and their insight was soon borne out in the events of the French Revolution and its Terror and its endless and massive wars (spear-headed in the end by Napoleon as Emperor), that once the government authority is justified by the ‘goodness’ of its goals, then its expansion can only be limitless and endless.

Like ‘war’ itself: once the French Revolution established – contrary to prior Western experience – that war could be waged not for a contestant’s ‘advantage’ but rather for the Good, then all the bonds and bounds containing it were broken. If, after all, you are engaged in pursuing the Good, then any accepting any ‘bounds’ is a form of treason to the Good, a form of holding-back.

And so in war it became established that you don’t ‘hold back’.

Because before long all the mass societies and economies of Europe were harnessed to wars in the service of the Good.

In the American setting, the government’s stepping in almost a century after the Civil War to eradicate the Jim Crow laws that had blunted the political achievements won by that War set a precedent there in the mid-Sixties that was then suddenly taken up by other groups who claimed an equal or greater ‘oppression’.

Whereas the Federal government’s involvement in the first phase of the Civil Rights movement in the later 1950s was in a very real sense only a continuation of the authority it had exercised 90-plus years before in that period of civil war which established black political rights, yet by the early 1970s, the Federal government was now expanding into the demands of other constituencies based not on any war authority but rather on the Goodness or Rightness – so claimed – of each constituency.

And you can see where that has led, just as the Framers feared.

Their idea would have been that change and ‘reform’ would come NOT from ‘the federal government’ as originator, but from The People as, in the process of deliberation the Citizenry sought to make what changes were decided upon. And perhaps it would be State by State, since in the American system (does this sound strange? – it shouldn’t) it was the government of their respective States that provided the first political forum for folks; the government in Washington was a distant thing, Constitutionally as well as geographically.

Thus the Constitutional balance is preserved (not the ‘typical’ one between the Branches of the Federal government but rather the more vital and fundamental balance between the Federal government and The People).

But instead, the 1970s saw the expansion of direct Federal power – in pursuit of what was claimed to be the Good – not only over the prior authority of the States but of The People themselves (too many of them ‘just didn’t get it’ and so their deliberations would not only be slow but ‘tainted’ by all the stuff they ‘just didn’t get’).

You can see here where an awesome Constitutional imbalance was set off, and a dynamic one as well.

Because it kept spreading as the Feds began not only to impose whatever it took to achieve a claimed Good, but also to impose whatever it took to stamp out a claimed Evil.

And in short order the country was in the midst of the Sex Offense Mania back there in 1990 or a bit later (after what should have been the profoundly worrying experience of the vividly weird and eerie and ominous Satanic Ritual Abuse Pre-school Cases of the early 1980s).

And as the SO community well knows, once you are engaged in a chase after ‘Evil’ you are in for a lonnnnng ‘war’ indeed. And a ‘war’ that continues to expand since its original objective – ‘Evil’ – is a virtually unlimited concept.

Thus things progress dynamically to the increasingly limit-breaking expansion of Federal efforts against the (rather largely manufactured) ‘evil’ of the Sex Offender and the Sex Offense.

At this point, however, I think that rather than imagining the Federal efforts to wage this ‘war’ for the ‘Good’ of controlling the Sex Offender as sort of a World War Two happy-story where the awesome power of the country is marshaled with increasing potency and effectiveness to stamp out an Evil, this thing is beginning to look more like Vietnam: the government is pouring more and more resources – based in justifications of not altogether pristine integrity and legality – into what appears a far more complex and (in terms of ‘dangerousness’) somewhat less Evil phenomenon.

And you can add that there were sex-offenses, and certainly criminal laws against rape and overt sexual assault even in the Framers' day but they were still more wary of the engorgement of the government police and control powers than they were about anything else.

Nor does it help to note that in the process of going after various Evils domestically, the Feds have lost control of the national economy, great damage has been done to the world economy, and the country is now involved in an apparently endless and expanding series of ‘wars’ against the Evil of ‘terorrism’.*

And the money – for both foreign and domestic ‘wars’ - against Evil is running out ... or perhaps already has, except as an exercise of public and governmental fantasy.

So I, for one, am verrrry leery of ‘writing new chapters’ without an awful lot of serious public deliberation. I’ve watched a lot happen in the past decades, and watched this SO mania grow to its present dangerous proportions step-by-‘logical’-step.


*Let me say right now that I am not in favor of ‘terrorism’ as a genuine and clearly-defined threat and challenge to any nation’s civic order.

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