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so far out of whack that extraordinary measures are needed to correct it. The chief purpose of the "balance of powers" concept was to protect the Republic against tyranny by the Executive. It has failed--not as a concept, but in practice, under the extraordinary pressure of a fascist junta. It is absurd to think that we have an independent judiciary--at least at the Supreme Court level--given Bush v. Gore, a wholly unprecedented Supreme Court interference in local election rules that stopped a recount that would have given Gore the presidency.
We have an Executive that was installed in the White House, rather than elected, in 2000, and which proceeded to act like an evil octopus, grabbing all sorts of powers that it should not possess, for instance, Bush declaring "his" policy of preemptive, unilateral war (at West Point in late 2002) in outright violation of the Constitution, or declaring "his" policy on prisoners of war, changing their status to "enemy combatants," in violation of numerous laws and treaties, or instituting a policy of torture in violation of treaties, international law, national law, the U.S. Uniform Code of Military Justice, and long-standing ethical principle.
These actions were not "balanced" or "checked" by any other power in government...
Not by the voters, whose sovereign power was removed with the onset of electronic voting during the 2001-2004 period, with "trade secret," proprietary programming code in the electronic voting systems, owned and controlled by far rightwing Bushite corporations (mostly Diebold and ES&S). Thus the revolt of the electorate, which was determined to throw this junta out, was foiled.
Not by Congress, many of whose members were "selected" by Diebold and ES&S, with others beholden to the military/corporate establishment by means of an intensely corrupt campaign contribution system, and also made fearful and silent by poisoned letters, mysterious political deaths, brutal political tactics and (more than likely) secret dossiers.
Not by the courts, which has made only flimsy efforts to protect the rights of "enemy combatants" and no efforts to curtail other wrongful power grabs by the Executive.
And not by the Fourth Estate, which has become little more than war profiteering corporate news monopolies, and, in addition to its general failure to investigate and criticize the Bush junta, outright conspired to help re-install the junta in 2004, by falsifying the evidence of its own exit polls (Kerry won) to confirm the results of Diebold's and ES&S' secret, proprietary vote tabulation (Bush won), thus denying the American people major evidence of election fraud and squelching protests and calls for investigation.
Given this situation--a situation in which an illegitimate government is clearly dictating to the American people and pursuing policies that the great majority of Americans disagree with--it is silly and useless to act as if the "balance of powers" were still operable. It is not. We have gone way, way over toward a fascist dictatorship, and are, indeed, currently hanging over the cliff of complete loss of our democracy.
A similar situation occurred in 1929, when the super-rich and the far right had destroyed the U.S. economy with their financial manipulations and humongous greed, and by their over-weaning power over the government, which refused to regulate them, and which further refused to take any significant steps to aid the general population, which was one third unemployed with many homeless and starving by the early 1930s. At that point, FDR was elected and worked with Congress to pass a series of "New Deal" programs to provide immediate assistance to the poor and to re-start the economy. The Supreme Court--appointed during the "robber baron" era when the economy was being destroyed--began blockading those programs and declaring them unconstitutional. FDR and the New Dealers then attempted to "pack the Supreme Court" (as the rightwing press called it)--that is, to add to the number of justices, so that new, young, liberal justices could be appointed to outvote the dinosaurs. Congress possesses this power (and still does, I believe); the number 9 does not appear in the Constitution (for the number of justices); Congress decides on how many justices there will be. While this effort failed politically, it did pressure the Supreme Court and one of the justices began voting for New Deal programs (thus, the Social Security Act, among other new programs was saved.)
The Bush junta has looted our country into poverty. We are looking at a trillion dollar deficit, while billions upon billions upon billions of dollars are still pouring into the pockets of Bush/Cheney cronies (with a Katrina hogfest now added to the Iraq hogfest). We are facing bankruptcy as a nation and the loss of all ability to see to the common welfare. And that's just for starters.
So, when you are talking about an "independent judiciary" or a "balance of power" in government, or in society, it just seems like a bad joke. What government? What society? The foundations of our society are crumbling beneath us just as surely as those demolished Twin Towers descended in a cloud of dust and disappeared.
IF--and I repeat IF--we can recover our right to vote (by throwing these Diebold and ES&S election theft machines into 'Boston Harbor'), our FIRST problem will be survival--food, shelter, medical care, civil order, employment, and protecting our planetary environment (which we are also losing), and doing WHATEVER is needed to ensure that the interests of the majority are served (as they are not being served now), and THEN we will have the problem of reconstructing our government and legal system so that a PRESIDENTIAL TYRANNY CAN NEVER HAPPEN AGAIN.
To speak of an "independent judiciary" NOW is to believe in a world that no longer exists. The courts ceased being "independent" and became wholly owned subsidiaries of the military-corporate establishment long ago (circa Reagan), with the Bush junta pushing them over the edge into near complete unfairness with one fascist appointment after another.
We, the People, have the right to establish WHATEVER governmental and legal forms serve our immediate and long term interests. We have the CURRENT right, under the Constitution, to elect representatives who will declare the Bush junta illegitimate, invalidate the 2004 election because of its egregious non-transparency and massive evidence of a wrong outcome, and thus render every one of its appointments null and void. Short of that, we can elect representatives to investigate and impeach all current and former Bush regime office-holders, including members of the Supreme Court; to add to the number of justices to outvote the Bush appointees; and to propose and pass constitutional amendments to term-limit the justices, to make them electable (not appointed), and to restructure the court however we wish.
We have the right to toss the Constitution out and start over, if that's what we need to do. Although I approach these issues--the structure of the Constitution and its "balance of powers" concept--with great conservatism, knowing its history and principles, and although I think it is wise to consider the stability that the Constitution has provided (even including its silliest, most outdated features), and most certainly to consider the rights of the individual that are enshrined there, and the perils of changing the Constitution in the current political atmosphere, I nevertheless think that we are fast approaching the point of no return on saving our democracy. We are looking at a potential chaotic bloody revolution which no one in their right mind wants to see.
Yes, it is a brilliant and original concept, having the courts be independent from the other branches of government, and has served us well over the years. But what do we do when the court has been PACKED by a rightwing junta with rightwing justices whose sole purpose will be to protect the ungodly gains of the super-rich and of U.S.-based global corporate predators and war profiteers?
We act to right this ship, that's what we do--however we can. A ship at the bottom of the sea benefits no one.
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