One Utah

This piece was originally written in 2001 as a speech to be delievered at The United Nations. Subsequent events have horrifically underlined Bush’s contempt for the Constitution and the American people: the illegal invasion of Iraq–cost, $300 billion  www.costofwar.com), 22,500 Americans dead and wounded, 40,000 Iraqi civilians killed; the national debt now $9 trillion with the deficit for 2006 projected to be another $300 billion; presidential approval of NSA domestic spying operations. Although Bush is still escaping Congressional sanction, a possibly hopeful sign is his plunge to 32% in public approval rating.

DEATH OF THE CONSTITUTION
Ed Firmage

John Marshall in Marbury v. Madison at the beginning of our country and our country’s Constitution reminded us that the United States Constitution was not a police code but rather a magnificent document of an infant republic destined to be a nation of continental proportion that would come to govern from sea to shining sea. This fundamental document was the mother lode of all lesser law that would come. Constitutions are the infrastructure not the superstructure of our law and our community.

All are under ferocious assault as time is literally speeded up, driven by technological revolutions not as in time past occurring roughly between wars: 1860, 1914, 1940; but now every two and one- half years all our equipment is hopelessly dated, driving our societal theology nuts as we try philosophically to stay, somehow, coherent and congruent with our technology.

Constitutions are the legal and traditional matrix of Roman Catholic theology as that mighty faith attempts to deal with two thousand years of history when confronted with a combination of constitutional crises involving the interrelationship of faith, sexuality, gender, celibacy, and priesthood.

Constitutions, the structural stuff of society, are what is involved in international monetary and fiscal crises which now threaten these systems as they emerged at the end of the Second World War. Wall Street is now reflecting this crisis of confidence as it measures what we all think about the security of our financial future. Though there remains some strength on Main Street, Wall Street shudders and financial capitals of the world reflect that fear as the world’s major source of financial stability, the United States of America, stumbles badly.

Constitutions are in crisis within our very bedrock political system, the nation-state system by which the world, still, is largely governed. National sovereignty seems strangely archaic as wind, water, food, people and all animal forms, disease, money, refugees (our lifeblood) and terrorists all pass through porous borders of the world as if they weren’t there, as indeed they are not.

The constitutional structure put in place following the Wars of Religion, celebrated in international law by the Treaties of Utrecht and Westphalia, recognized what had come to be, namely, secular territorial states. Now, now this organization of international society is clearly inadequate for the life of our time. Those great treaties, recognizing the savagery of religion unmediated by the reality of secular life, departed from religious feudal governance and left us with secular territorial nation-states, each theoretically possessing sovereignty without the need of religious mediation.

The religious and ethnic ferocity of many tribal wars in Africa and the Middle East remind us that such savagery has by no means entirely abated. The Middle East is seething in civil strife as Islam and the entire Moslem world fight, basically among themselves, to determine the face, the heart, the soul and the mind of Islam. Will the fundamentalist theology of Bin Ladin and his associates be successful in keeping that great monotheistic faith locked into a medieval past? Yet if the modernist forces in Iran, Iraq, Egypt, Jordan, and Indonesia prevail, how indeed do they intend to address, for this Christian, the Pauline paradox accomplished in paradigmic brilliance for my faith by that greatest of all apostolic missionaries?

Some way must always be found to pass down the teachings of the Founder of the Faith throughout space and time, somehow simultaneously both relevant to today and yet still possessed of the deposit of the faith intact, separating like sheep and goats the bedrock teachings, the constitutional corpus, in a sense; from the sociological superstructure of a particular time and place. This paradox must always not only be honored but somehow resolved such that every land and people in every age possesses the same absolute right of choice. In this manner that their own ways in their land and their time might supercede those of a previous generation, somehow to be interwoven within the body of faith, without a loss of integrity of the message. This must be done by every living faith so that the ways and choices of earlier and entirely dead progenitors are replaced; and yet the corpus of the faith, the mother lode, be kept intact for every generation in time and across the globe.

We in the West are involved in this ferocious Islamic civil war mainly by our own colonial and militaristic empirical adventures, greedily treating others: their land and their people and their resources as if we owned them all. This fatal hubris will be our doom unless we learn as Rome never did to mind our own business. Heaven knows, whether or not Washington has a clue, that we have enough of our own problems without intervening as if God ordained us world policemen to govern other peoples’ lives. We cannot resolve the crisis of Islam. We are and we will continue only to make things dreadfully worse and create savage karma for our own future unless we understand both our peripheral role and at the same time bring to that understanding a huge respect for the sacrality and autonomy of the beliefs and the institutions built to sustain them.

If our own actions are instead based upon economic greed and our own desire for world hegemony, we will make things dreadfully worse. A world at peace and in harmony with God and nature cannot be accomplished by military force and violence. The use of the military in foreign adventures, _nation-building_ as we called it in Vietnam and again today as this Administration blithely talks of waging war against Iraq and any number of other states, just won’t work. War and weaponry cannot get us to that world so much to be desired where every woman and man may sit under their fig tree and observe the children of their children ‘s children. Governments gone mad with their own power will be destroyed by the very swords they produce and use so savagely on others.

Tertullian, a third century lawyer and convert to Christianity in North Africa, spoke for me when seventeen-hundred years ago he noted that Christ unbuckled every Christian when he unbuckled Peter: “Peter, put away your sword. For he that takes the sword will surely be destroyed by the sword. “

Nothing better reveals this personal and national hubris more clearly than presidential talk of invading Iraq without congressional declaration of war and international sanction. The idea that an American President can make war on another state without congressional approval violates both the text and at least l50 years of our 200 years of experience under the American Constitution. The war clause grants Congress, not the President, the sole power to decide for war or peace, other than in taking defensive measure for self-defense of the United States. From the Korean War to Vietnam we violated this history, but the Congress came to understand this and took action after Vietnam to restore the original constitutional balance between the presidential power as Commander-in Chief to conduct a war, from congressional power to decide for war and to determine its scope. This President is presently escaping Congressional sanction simply by his flying high in opinion polls. All to often, presidents reach their highest point in public support precisely when committing their gravest blunders, if done in the name of national security. Our natural tendency to rally round the flag in time of crisis is thereby triggered, though in time the people come to understand and presidential numbers disintegrate precipitously.

Mr. Bush, beware the Icarus ascent and descent.

Indeed, the technology of war threatens a macabre revenge, or karma, upon all of us. We have dangerously inflated, as individuals and as a nation governed by a cheerleader who doesn’t seem to have a clue other than to continue to befriend the corporate clients who created him. This greed threatens our end. These constitutional crises must be addressed with thought and with openhearted turning from our own mistakes, in finance, foreign policy, and our own governance.

We in the Western United States have been both guinea pigs and sitting ducks. From open-air atomic tests when the wind blew toward St. George, Utah and not Los Angeles where the votes were; to the intended placement of MX missiles in our Great Basin; to testing and bombing our own people within our military, soldiers and civilians drenched and dusted with nuclear debris and left to die of cancer, not warned by our own government; similarly with ferocious chemical and biological and psychological weapons: tested on our own people, killing them along with thousands of Utah sheep and cattle. And now burying this vile stuff, storing these poisons, where we live.

The constitutional structure of our democratic republican state is also threatened with destruction as it has been hijacked by modern terrorists among us who have bought our legislatures, our governors, and our national political branches composed of both parties: our Congress and the American Presidency. CEO’s and politicians in each other’s pockets cannot create or maintain human rights and real democracy. They have platinum parachutes. Do you? In your retirement funds now? Buccaneers have boarded the ship of state, pirates who loot, rape, and steal. From us and from each other. Greedy folk feed on anyone at hand, like any other cannibal.

Its now time for direct democratic peaceful protest and vote: by referendum, and by ballot initiatives. This, after all, is precisely how our Bill of Rights overcame Federalist opposition: Jeffersonian street and tent demonstrations throughout the length and breadth of the Republic until, finally, Washington got the message: FREEDOM NOW. Then and only then the first ten amendments were added to the bedrock of the American Constitution.

The Bill of Rights which corporation (say Enron, World.Com) or government do you know that possesses the track record to police nuclear garbage in Yucca Mountain, Nevada, or in Utah, for the twenty-four thousand years of plutonium’s half-life? Which corporation now bidding to bring ever more toxic waste into any state so ill-represented as to invite it in, has the half-life to insure by bonding and by governance and by integrity the repair and the maintenance of these deadly radioactive caskets for a million years? Or their safe transit on our roads and highways?

Are campaign contributions really that valuable?

Take a look at your children and decide.

Our non-nuclear power sources, though not perfect, do not possess radioactive half lives of thousands or millions of years.

This garbage is gathered in part from weapons used on Iraqis and Bosnians and Serbs and Croats by coating our anti-tank missiles with so-called “depleted uranium,” now buried here. This awesome missile cuts through a tank like a hot knife through butter, melting the steel and changing it forever into radioactive microscopic shards of porcelain which now blanket Iraqi sands and water, to be ingested by generations of young women, some of them pregnant, who walk as their ancestors walked through the sands to draw from their nuclear-contaminated wells the water that will poison their children and their fetuses for a thousand years.

Iraq, our supposed enemy, gave us Hammurabi’s Code, long before Moses came along. Our own soldiers walked through these clouds of nuclear contaminants and inhaled the same breezes and returned with so-called Gulf War Syndrome, better named Pentagon Disease.

The serial killers now in charge of Middle-Eastern states, and other countries as well, cannot bring peace. We can. But not by becoming even more ferocious than they. By our being serial killers ourselves, indistinguishable from their serial killers only by our vastly larger and qualitatively utterly more savage arsenal. Surely then we are ethically and spiritually worse than any possible opponent and the dark side has already won.

This now is the “plan” I hear voiced by our current crop of greedy leaders.

We must remember ends and means.

The end we seek– a world at peace–simply cannot be achieved by the employment of means utterly incongruous with that end.

With the end of the Cold War, we entered into a time, hopefully still alive, when we had a chance–a real chance–the only chance in my lifetime fundamentally to change international society.

We must change our minds before we can change our law and governance.

Law is at once essential and inadequate. Hopelessly inadequate to meet our crises of constitutions. The peaceful resolution of our disputes must always be our goal. Years ago Robert Conquest, the great Western scholar of the history and inclinations of the Soviet Union, said prescient knowing words he aimed at predicting Soviet governmental behavior. But it applies equally well to any government, including our own. Indeed, to any corporate body where the seven deadly sins of mortals–sins like greed, for example–meet bureaucratic inertia and principles of saving one’s hind parts as coming way before the Ten Commandments. He said that if one wants to predict the actions of government simply assume that that government has been secretly and swiftly overtaken by a cabal of its most virulent enemies.

Only in that way can one perceive the ineluctable inclination institutions have to do diametrically the wrong thing; to take that action most deadly to its own self-interest. The thing most obviously and seriously threatening to their own continuance. He wrote before the suicide of the Soviet Union. But his words are words for our time. They explain the demise of the Soviet Union. They explain our own foreign and financial policies. And the dismal record of our local governments.

More directly, they explain as well my own behavior, all too often. Anyone who does serious psychological and theological reflection knows this. I fear my fear. I fear my own inclination to see enemies when there are more often only other frightened people.

Ockham’s Razor saves me, sometimes. He said that an unknown phenomenon is most safely and accurately explained by the simplest and most likely reason sufficient to account for the new incarnation.

All great religious systems have at least one teaching in common, whether phrased positively or negatively: that we do to others what we would have done to us. Or perhaps more safely, that we not do to others what we would not want done to us. Secular aphorisms mirror this. We must do locally, nationally, and internationally, only what we would want to be done to us. In Afghanistan; in the Middle East and in own land and valley we must be willing to absorb violence, for a time, without responding with violence. If an eye for an eye governs, then very shortly we will all be blind.

Martin Luther King, Jr., and his mentor, Mahatma Gandhi knew this. The Dalai Lama knows this. We know this. Nuclear weapons, chemical weapons, biological weapons must be governed with huge respect until that blessed time when they all may be eliminated from the earth.

Gandhi lived to see our bombing of Nagasaki and Hiroshima. He said that nuclear weapons could never save us. There is no nuclear weapon that can save us from other nuclear weapons. And the effluent will surely kill us even if no weapon is ever again used. Only non-violence. Lets not waste any more time. 1989 saw the end, finally, of World War I. Our twentieth century was, in Raymond Aaron’s memorable phrase, the Century of Total War. For in that Great War, which precipitated all that was to follow almost in deterministic frenzy, for the first time, the distinction between combatant and non-combatant disappeared. Each succeeding conflict has seen this ferocity only continue, not recede. Nuclear weaponry, biological and chemical weaponry, mass bombing of civilian centers, all are weapons that admit of no boundaries in time or space. This eviscerates any concept of Just War ( born in Christian theology and continued after Westphalia in secular international law), by which respect for civilians, the wounded, and the hallmarks of civilized society were protected from wars.

The deterministic nature of World War I upon the conflict that followed practically dictated that no political leader had realistic hope to change the direction of the technology, the nature, and the likelihood of war. In effect, therefore, until November, 1989 and the refusal of the Soviet Union to intervene in the democratic revolutions sweeping the world, the momentum of World War I remained unabated in power.

No American president, and no other leader, really, had any chance to help us change our minds. This makes the present malaise in Washington all the more tragic, in that it does not allow the determinism of real tragedy to abate.

The use of the bully pulpit of the American Presidency only to see other states and other people as the incarnation of evil is both stupid and immoral.

Our human penchant to personalize and demonize evil is deeply wrong. St. Augustine knew and we should by now have concluded that a Manichaean world view is fatal in theory and in practice. As if one person could really embody all that is evil and wrong, so that the simple eradication of that person would end the problem. Bin Laden. Saddam Hussein. Remember Noriega? The cause of the drug trade? Actually, a thoroughly corrupt Panamanian dictator now rotting in federal prison after the first Bush made war on Panama. The Mouse that Roared. This is evil. How many children–our children in Panama–died so that the drug trade may cease? Cease? Yeah, sure. How many children now growing up in refugee camps…how many children who watched their mothers and fathers and brothers die…are ready and able to become the Bin Ladin’s of the future?

And of course, this personalization of evil distracts our minds and our money from seeking and then accomplishing the real solutions to our crises. We create tens or hundreds of thousands of terrorists for every one we kill with savage weaponry from the sky.

Charles Dickens knew this. We know this. Our enemies are ignorance, hunger, fear, and greed.

Truly we must change our minds before we can change or law, our politics, and our own hearts. This we must do before we can change our laws: governing finance and foreign policy; religion and ethics; laws governing how we treat the planet without ending our own lives by poisoning our land, our water, our air–and ourselves and our children and our race and this good Earth.

Ed Firmage is the Samuel D. Thurman Professor of Law at the University of Utah College of Law, where he teaches constitutional law and international law. He served on the staff of Vice-President Hubert Humphrey in the 1960’s as a White House Fellow, and worked with Roy Wilkins of the NAACP and the Rev. Martin Luther King, Jr. Currently he works actively with His Holiness the Dalai Lama. He has written extensively upon the war power of Congress, dispute resolution, religion and law, and civil rights and human rights, including a history of the war power in American law, To Chain the Dog of War, (Illinois Press). He led the successful opposition to the MX missile in the West. Ed resides in Salt Lake City, where he inhales exhaust fumes, which serve as air along the Wasatch Front.

This entry was posted Friday, June 23rd, 2006 at 3:46 pm and is filed under This Blog. You can leave a response, or trackback from your own site.