Tuesday, November 13, 2012

An Appeal for Repeal

of the 22nd Amendment to the Constitution of the United States of America, for preventing the rights of the people from lapsing into the custodianship of someone who might not respect those rights.

It's a melancholic thing to consider, so soon after another successful presidential election, that the 22nd Amendment prevents our presidents from being elected to more than two terms in office. This is a matter of some serious urgency, now, given the current laws and circumstances of our great country.

The 22nd Amendment codified into law the convention, established by George Washington and adhered to by 150 years of presidents, of limiting the president to a maximum of two four-year terms. After Franklin D Roosevelt was elected to four consecutive terms, the people were motivated to ensure that no one man would be allowed to stay in office for more than two terms.

Of course, FDR was president during extraordinary times in our nation's history. It would not have been prudent to oust him after just two terms, in 1940, with the nation in the early stages of a fragile economic recovery from the Great Depression and FDR promising to keep the United States out of World War II even as it exploded across Europe. By the time the election of 1944 rolled around, replacing FDR and his administration in the White House was unthinkable—we were at war in Europe and in the Pacific and the future of global civilization was hanging in the balance.

In the years after the Roosevelt administration, perhaps in part in reaction to the evidence—presented in stark relief by both allies and enemies of the United States in World War II—that a single unchecked individual with a tyrannical inclination could wield massive influence and power over entire continents, Congress passed the 22nd Amendment, and it was ratified by the necessary number of States in 1951.

The 22nd Amendment was the right thing for the country at the time it was proposed and ratified, but just as the Constitution is not written in stone, and must be amended and reinterpreted to keep pace with the changing times, so too must we revisit, modify, or do away with some of those changes as our society continues to evolve.

The terrorist attacks on the United States of America on the morning of September 11, 2001 brought about a paradigm shift in the scope and authority of the federal government, forever changing the way Americans think about and relate to the national state. 9/11, and the way we responded to it, effectuated legislation to reflect that new understanding and relationship. I believe the time has come to amend the Constitution to bring it more in line with our post-9/11 twenty-first century American reality.

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act—the USA PATRIOT Act, for short—was signed into law by President George W Bush on October 26, 2001. The Act was designed to make it easier for the FBI and other police agencies in the US to surveil, charge, and convict people suspected of committing, or planning to commit, terrorism. In order to keep the vast majority of law-abiding citizens safe from the threat of terrorism, the Patriot Act necessarily plays a little fast and loose with the Bill of Rights, especially the First and Fourth Amendments to the Constitution. Some critics have said that the Patriot Act, as applied by law enforcement agencies and the government, has infringed on some suspects' constitutional rights, mostly in terms of unreasonable searches and warrantless surveillance by the government.

Some of the Patriot Act's harshest initial critics, however, have come to see that the safety and security benefits that the Patriot Act has for the vast majority of citizens outweighs whatever harm it does in temporarily waiving the rights of terrorism suspects. President Obama, for example, a former constitutional law professor and one-time president of the Harvard Law Review, once opposed the Patriot Act on civil liberties grounds, but came to believe that the benefits of the Act outweighed the risks, and voted for its extension when he was in the Senate and also, as President, signed a four-year extension of the Act in 2011. Despite controversy that nothing had been done to limit the Act's more liberties-infringing provisions, President Obama recognized that no matter the consequences on the individual liberties of terrorism suspects, the Patriot Act was too valuable a tool for ensuring the safety and security of Americans to allow the law to expire.

The Military Commissions Act was passed in 2006 to provide a legislative framework for the anti-terrorism policies already being practiced by the Bush administration, the Department of Justice, and the government's various enforcement agencies. In order to keep Americans safe, it was necessary to keep the trials and charges of people that the Administration deemed “unlawful enemy combatants” a secret, by trying them in military tribunals rather than in civilian courts. The Act also made it easier for government agents to obtain crucial intelligence from detainees by making it harder to later prosecute and convict those agents of war crimes. While some critics claimed that the Act was retroactively forgiving and endorsing physically coercive interrogation techniques, Congress and the President found that concerns about civil liberties were outweighed by the safety and security that the Act bestowed upon the vast majority of Americans. The Act was renewed in 2009 as part of that year's National Defense Authorization Act and signed by President Obama amid concerns that despite some tweaking, the Act might be enforced in such a way as to infringe on the rights guaranteed by the Fifth and Fourteenth Amendments to the Constitution.

The National Defense Authorization Act for Fiscal Year 2012, signed by President Obama on December 31, 2011, received some attention from civil liberties watchdog groups, as well. Some critics claimed that the bill explicitly allowed for the indefinite detention of US citizens and non-citizens without charge or trial, and that the NDAA effectively upended the Constitutionally-guaranteed rights of Americans to due process.

While those sorts of issues will no doubt be settled in various federal appeals courts in the years to come, it's important to remember that even though the NDAA, the Military Commissions Act, and the Patriot Act appear to, in certain cases, supersede and therefore invalidate the rights guaranteed by the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Fourteenth Amendments to the Constitution, President Obama has promised that the most controversial provisions of these acts will not be used against American citizens. He has personally guaranteed it, and put it in writing in the form of various signing statements. Our rights are secure, no matter what the various laws say, because President Obama has said so.

This isn't just about legislation, though. President Obama has also taken personal responsibility for authorizing drone strikes in foreign countries, making decisions about which of our individual enemies will live or die, something the New York Times called the President's “kill list.” There is a data center being built in Utah, run by the National Security Agency, that will function as the nation's primary intelligence-gathering resource, and will house the details of every cell phone call, text, e-mail, internet search, and browsing history of every person in the country, to build a trackable, personalized digital fingerprint of everyone through their interactions with the digital world. The center will also focus on code-breaking, as the NSA attempts to use the next generation of supercomputers to fight internet data encryption being used by people who are potential national security threats.

We were all taught, growing up, that the government doesn't create or grant our fundamental rights, but that the government is there to respect and protect those rights. In a post 9/11 America in which we have necessarily centralized power and handed the custodianship of our fundamental rights into the authority of one man, currently President Obama, we can't very well afford to be forced to replace that one man every four or eight years. We have been incredibly lucky with Presidents Bush and Obama—we granted them unprecedented access to upend our rights, and they have not abused that power. Why roll the dice again so soon, with a new president, if we don't have to?

Most everyone has heard Benjamin Franklin's oft trotted-out quote, “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” That was a different time, and practically an entirely different world. If the liberties that we are “giving up” are being guarded by someone we can trust, someone who has already proven through one four-year term that we can rely on him to protect the rights of American citizens and at the same time keep us safe, the only way we could truly put those rights and liberties at risk would be to force ourselves to put someone else in charge. We have charged President Obama with the awesome authority to contravene our most sacredly held rights, and he has not seen fit to do so. Whoever the next president is might not have the same healthy respect for our fundamental rights. We must repeal the 22nd Amendment so that, at the very least, we can put off the day when we have to enshrine that authority in another individual.

The 22nd Amendment, once a well-intentioned bulwark against tyranny and the threat of a creeping cult-of-personality megalomania in the White House, is now an anachronistic hindrance to true liberty and security in modern America. The First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, and Fourteenth Amendments to the Constitution are what is at stake, here. Do we really want to sacrifice all of those, and the rights that they protect, because of the pesky and antiquated Twenty-Second Amendment?

I profess, in the sincerity of my heart, that I have no stake, personal or financial, in the outcome of any effort to repeal the 22nd Amendment, nor any connection to a potential future Obama reelection campaign effort, and have no other motive than the public good of my country. Repeal it now.

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