Sunday, April 08, 2007

I’ve been in Philadelphia all week, as a Distinguished International Scholar at the University of Pennsylvania, where I have been hosted by my colleague Dr Julie Sochalski. It’s always useful to participate in the transatlantic exchange of ideas, as so many ideas from the US to Europe and it helps to have the inside story! It’s also really useful to have an opportunity to have discussions with American students. Although we have much in common, there is a surprising amount that divides us.
Despite a very heavy schedule, I did manage to get a few hours off and I went to see the new National Constitution Centre. It is really worth a visit.

The National Constitution Center, Philadelphia

It is on the edge of Philadelphia’s small historical quarter, the setting for the Convention that created the US Constitution in 1787. Although independence was achieved in 1776, at first the 13 states wanted to remain a loose confederation but it soon became clear that this was not working. In particular, the original confederation was not up to the task of resolving inter-state trade disputes. Many people who would later become household names, such as Benjamin Franklin, James Madison, and Alexander Hamilton, met together in secret session and in only five months they agreed a constitution (if only the European Union could do it so easily!).
A key principle was separation of powers, which ironically, was an idea that copied from Britain. Unfortunately, as I have noted elsewhere, Mr Blair is doing its best to eliminate any residual any residual separation of powers that might challenge his absolute executive, legislative, and increasingly judicial authority. The founding fathers of the USA divided power between the executive (the President), the legislature (Congress), and the judiciary (the Supreme Court), as well as between the states and the federal government. The legislature was separated into the House of Representatives, which represented the people, and the Senate, which represented the states (they got 2 senators each).
The Constitution was not perfect. For example, they couldn’t agree on slavery so it was simply not mentioned. And they also didn’t agree on a number of other issues relating to basic rights, although this was soon addressed in ten amendments, enacted in 1791 and subsequently known as the Bill of Rights. Thomas Jefferson, who had been abroad when the Constitution was agreed, was a key figure in pushing them through. The amendments included, for example, freedom of speech, of seizure, and of cruel and unusual punishment.
A visit to the Constitution Centre begins with a skilfully presented performance by an actor in a central auditorium, against a background of impressive audio visual wizardry. However it was the exhibit that surrounds the auditorium that is the most interesting (at least I thought so). It takes the visitor through the operation of the constitution and how it has changed, both substantively through amendments and in terms of how it is interpreted, through Supreme Court rulings. It is extremely balanced, presenting both the political successes and the failures, including the events leading up to the civil war. However, the abiding impression is that the system put in place by the people who drafted the Constitution did a remarkable job, finding a way that could ensure that no-one was above the law….. at least until recently.
As one reads the ways in which Congress and the Supreme Court stood against attempted abuses of executive powers, such as FD Roosevelt’s threat to stuff the Supreme Court with additional, sympathetic justices, or Richard Nixon’s initial refusal to release the Watergate tapes, one cannot help to contrast what happens then to the situation now. A sympathetic Court, Republican control of both houses, and almost total domination of the media by sympathetic forces, has allowed George W Bush to assume an unprecedented degree of executive power. The most obvious is the decision to authorise US agents to kidnap people in foreign countries, fly them to places where they can be held in secret, and subject them to whatever conditions they choose. By arguing that the places where they are held, such as Guantanamo, are outside American jurisdiction, the executive in Washington has so far managed to insulate them from any legal oversight.
Yet there are at last signs that things are changing. The Supreme Court has just held that it will not hear the cases of several Guantanamo detainees but a careful reading suggests that it really meant “not yet”. The recent legislation that set up the military commissions did establish a system, albeit deeply flawed, that gives the appellate courts in the District of Columbia some say, and that process has not yet been fully exhausted. It seems likely that Justices Anthony Kennedy and John Paul Stevens will support an engagement by the Court in these cases. It is even possible that the executive branch may welcome this, as the new Defense Secretary Robert Gates clearly recognises the incredible harm that Guantanamo’s continued existence does to the reputation of the USA. If the Court does decide to get engaged, they will have much to discuss. The case of the Australian, David Hicks, who is about to be released from Guantanamo really says it all. After five years in what must have been the most awful conditions, despite what is now quite obviously no evidence that he was guilty of anything except naivety, he has agreed to spend a further nine months in an Australian jail. The US authorities were unable even to keep to their own totally one-sided procedures during the Commission that “heard” his case and he was eventually dealt with through a deal between his defence counsel and the President’s staff. When he returns to Australia he will be forced to remain silent about what befell him until after the forthcoming election, conveniently for John Howard (not that there is any legal basis in Australian law for this to be enforced).
The tragedy is that the high ideals in the US Constitution, which as the exhibition reveals have been adhered to for over 200 years, seem to have been cast aside by the current White House. One can only hope that this will change – the signs are at least positive – and that in the future there will be a new display case cataloguing the transient aberration that, with events like the internment of Japanese citizens in WWII and Macarthyism in the 1950s, happen from time to time before the checks and balances in the Constitution restore life, liberty, and the pursuit of happiness for all.

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