And now the judges are deserting us

Sam Smith

It used to be that if the White House or Congress did something really stupid to the Constitution, you could at least hope that a federal court would straighten them out. But a number of recent decisions suggest that we’ve lost the judges too.

In recent weeks, federal courts have:

  • · allowed the White House to indefinitely detain persons that if they fit into the White Houise’s view of enemy combatants or those providing them with support.
  • · declared reporters have no First Amendment privilege from testifying in court in criminal proceedings
  • · The government can seize historical cell phone location data without a search warrant.

We were taught that the law is an objective, logical business, producing something called justice, but, in fact, it is as culturally determined as the rest of our values. So now it’s not just the politicians who have deserted the Constitution; it’s the media, academia, and the lawyers. After all, Barack Obama studied constitutional law at Harvard Law School yet it hasn’t helped us at all.

Unless we recognize and resist what is happening, we’ll join the crowd. Fifteen years ago I described it this way in my book, The Great American Political Repair Manual:

Here’s how a college professor, in another country and in another time, described it:

What happened was the gradual habituation of the people, little by little, to be governed by surprise, to receiving decisions deliberated in secret; to believe that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if people could understand it, it could not be released because of national security.

… The crises and reforms (real reforms too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter.

… To live in the process is absolutely not to notice it — please try to believe me — unless one has a much greater degree of political awareness, acuity, than most of us ever had occasion to develop. Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted.’

~ Believe me this is true. Each act, each occasion is worse than the last, but only a little worse. You wait for the next and the next. You wait for one shocking occasion, thinking that others, when such a shock comes, will join you in resisting somehow.

… Suddenly it all comes down, all at once. You see what you are, what you have done, or, more accurately, what you haven’t done (for that was all that was required of most of us: that we did nothing). You remember those early meetings of your department in the university when, if one had stood, others would have stood, perhaps, but no one stood. A small matter, a matter of hiring this man or that, and you hired this one rather than that. You remember everything now, and your heart breaks. Too late. You are compromised beyond repair.

This quote is from a remarkable book about Nazi Germany written by Milton Mayer in the 1950s. They Thought They Were Free  examined not the horrific perversions but the horrible normalcies of the times. Mayer summed up his own experience this way:

Now I see a little better how Nazism overcame Germany … It was what most Germans wanted — or, under pressure of combined reality and illusion, came to want. They wanted it; they got it; and they liked it. I came back home a little afraid for my country, afraid of what it might want, and get, and like, under pressure of combined reality and illusions. I felt — and feel — that it was not German Man that I had met, but Man. He happened to be in Germany under certain conditions. He might be here, under certain conditions. He might, under certain conditions, be I.

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