Eighteenth century political philosophers truly asked big questions. Jean-Jacques Rousseau asked whether there can be a legitimate political authority. The answers provided by Rousseau and others formed the foundation of modern political thought that informed the American Declaration of Independence and later, the US Constitution. A sovereign people, endowed with inalienable rights, collectively ceding power to a government of the majority, which in turn exercised limited, defined powers to maximize personal liberty.
America’s founders felt so strongly about the latter that passage of the Constitution was effectively contingent upon the passage of a Bill of Rights, which specifically guaranteed personal freedoms, limited the government’s power in judicial and other proceedings, and reserve certain powers to the states and the people.
It resulted in the American social contract; a sovereign people ceding power to a government, created by the will of the majority, which was itself limited and contained by the Constitution, federalism and the checks and balances between three co-equal branches of the national government. The American experiment has been so successful in practice that these man-made rules have become a secular “holy grail” whose perpetuation is now largely taken for granted.
But 2013 has given ample reason for pause.
While we have been transfixed on Miley and Zimmerman, the Kardashians and the dynasty of water fowl, government-dictated exigencies of circumstance are undermining our social contract in a real and profound manner, destroying citizen trust in public institutions and polluting our political discourse in undeniable and disturbing ways.
A reckoning is essential.
Consider the still ongoing War on Terror. Technological advances have now given the US government the power to identify, find, target and kill individual terrorists almost anywhere on earth. It is a revolutionary capability that undermines terrorism’s central advantage - to hide in the shadows of society, invisible as they plot and execute.
But in February, the Justice Department released an extraordinary memo, laying out the legal foundations allowing the US government to target and kill US citizens abroad (who had joined terrorist organizations) without due process. The memo was breathtaking in scope and audacity, as it trampled multiple constitutional protections.
On February 6th, I laid out the issues here. I stated, “ The memo leaves us with, at best, an unconvincing case that the guaranteed constitutional rights of Americans can be stripped away at the convenience of the Executive branch. Worse, left uncontested, the memo creates a frightening new precedent for a wholesale expansion of Executive power in the future, well in excess of that delineated in the Justice memo, with fairly dire consequences to the rights of American citizens writ large.”
“There will be those who will see no merit in attempting to preserve the legal rights of an American traitor. If you go over to the other side, you get what you had coming. But the fact remains that the loss of inalienable rights by one American at the hands of their government, is a loss of rights for all Americans. And no matter what the offense, as evil and malicious as it may be (think Timothy McKee here); every American is entitled to due process of law. Nobody, least of all some unnamed officials in the Executive Branch, gets to arbitrarily decide who is protected by the Constitution and who isn’t.”
By summer, courtesy of Edward Snowden, Americans learned that sweeping programs, authorized in secret and managed by the NSA, had effectively eviscerated commonly understood American expectations of privacy by not only tapping all forms of electronic media, but storing that data when there was no evidence of a crime. The revelation represented nothing short of a state-sponsored assault on 4th amendment privacy protections, justified by unconvincing national security arguments.
Government officials, from the president to bi-partisan congressional leaders, bristle at the mere suggestion that such a powerful capability would ever be used for nefarious purposes against average Americans, but other events from 2013 make this a sham.
Consider the Fourth Estate. While the legitimate protection of government secrets remains in the national interest, the Justice Department was revealed in May to have taken extraordinary measures to track down leaks, including the seizure of phone and email records from reporters, and declaring James Rosen of FOX News a criminal “co-conspirator” for the crime of investigative journalism. The excesses against the First Amendment here are clear and compelling.
But government malfeasance corrupted public integrity in multiple ways in 2013 as well, beyond spying.
This past spring, the public learned that between 2010 and 2012, the IRS – ostensibly above politics and politicking – knowingly and systematically targeted conservative-leaning groups applying for tax-exempt status.
As I wrote on May 20th, the IRS scandal included, “Outrageously invasive and unconstitutional queries into the daily activities of those conservatives who sought 501(c)(4) status. The targeted audits of citizens who publicly opposed President Obama and his policies in 2012. Selected leaks of confidential tax information about prominent conservatives and conservative leaning groups to left-leaning groups, which then published the data for partisan advantage.
Worse, this despicable official conduct was known. The IRS leadership knew. Indeed, they may be responsible for providing false statements to Congress by officially denying that any extra scrutiny was applied to conservative applicants for tax exempt status….Now we learn that senior political appointees at the Treasury Department were aware of the abuses in March 2012, and that White House officials were informed of the IG investigation in early April this year.”
A clearer case of government-sponsored voter suppression or violation of basic First Amendment rights is hard to construct. Worse, no one in power thought that the American people needed to know about this blatant abuse of power until after Election Day, and the President’s safe re-election.
This cavalier contempt for the basic integrity of government operations and the people it serves found its way into Congress in profound ways in 2013. Tea Party Republicans twice revolted against political reality in 2013; first in the Fiscal Cliff drama at the beginning of the year, and then in the unnecessary and deeply counter productive government shutdown over the debt limit and Obamacare in October, creating a damaging political narrative of an American political party willing wreak economic havoc on ordinary Americans to serve its political goals.
Democrats were no better. Harry Reid upended nearly a century of tradition in the Senate by unilaterally changing the rules on a simple majority vote, which effectively ended the ability of Senators to filibuster certain political appointments. For short-term political goals, Reid has forfeited the future of the Senate as a deliberative body – there is no going back from the path that Reid has set. When Republicans are again in the majority, Democrats will see the carnage they set in motion.
And of course the President cannot go without mention. In 2013, the Supreme Court agreed to hear a basic separation of powers case where President Obama recess-appointed controversial nominees in contravention of the Senate’s constitutionally specific “advice and consent” role. More than other modern presidencies, the Obama administration has seen a host of its power expansions called into question on fundamental constitutional grounds.
All three are examples of a fraying political fabric, a breakdown in the social contract.
The year ended with the best example of our sorry state of affairs – The Promise.
The President of the United States made a solemn promise repeatedly to the American people that if they liked their health care, and doctor, they could keep it. His plan was only to make health care more efficient, cheaper, better and more accessible to the 30 million Americans without health insurance.
None of that proved true.
What has resulted is a government program that undermines the foundation of health care in America, making it more expensive and restrictive, with lower quality. It is a scheme to hide the costs of insuring the poor and sick by forcing the 85 percent of Americans who were happy with their coverage in 2009 to buy policies with expensive coverages that they do not need. Millions of Americans have already lost their coverage because of Obamacare. Millions more will lose it 2014 as new mandates kick in for small businesses and other group plans. The impact on the medical infrastructure of America – doctors, insurers, hospitals – are already being felt and will be growing and enduring. And far from controlling costs, Obamacare is on track to explode in the federal budget.
The reality of Obamacare today is made worse by its origins. The President pursued the legislation despite the fact that never enjoyed the majority support of the American people, who were reeling from the Great Recession and seeking economic leadership. In the end Obamacare represented the first social legislation to pass Congress on a party-line vote in American history.
And that is why Obamacare is the Big Lie. A progressive ideological passion to reorder American medicine, sold by a lie to a trusting American public, borne out in the law’s underlying policies and regulations; all known to the Administration more than 18 months before program was rolled out. A time, incidentally, when the American people were going about choosing a president.
A better example of contempt for the government’s end of the social contract is hard to imagine. And this is where we are, entering 2014.
Whether by purpose or implication, our American social contract is under assault.
When the government unilaterally adjudicates the application of constitutionally protected due process for American citizens in government-sanctioned killing, our social contract is under assault.
When the government is free to monitor, steal and store our electronic lives without specific cause or warrant, our social contract is under assault.
When the government is free to intimidate reporters and suppress political advocates, our social contract is under assault.
When our representatives gamble with the country for political goals and damage national governing institutions for short term political gain, our social contract is under assault.
When our elected representatives knowingly lie to us, our social contract is under assault.
This is the state of affairs.
2014 is the year we can do something about it.