The Fourth of July is a time of celebration for the principles underlying the Declaration of Independence: 

All people are created equal. 
All of us are endowed with unalienable rights, including life, liberty and the pursuit of happiness.   
Governments are instituted to secure those rights and they derive their “just powers from the consent of the governed.”  
We often take these ideas for granted, but they are profound and very different than the principles guiding governments in many other nations.

The Constitution provides for a constrained government, with limited powers, and a separation of power among three co-equal branches of government – the courts, the Congress, and the Executive Branch.  Each branch is to provide a check against abuses by the other branches. 

At the core of the Constitution is a commitment to the principle that what is allowed or disallowed is determined by the rule of law, not by the dictates of one person or a cabal of a few people.   

The Constitution was created to “form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.”   

However, these documents are not sufficient for the fulfillment of their grand promises and principles.  Without constant diligence by each generation, our nation is at risk of transformation into a tyranny, where our liberties are lost, where an imperial presidency assumes dictatorial powers, and where, bit by bit, the principles upon which our nation was founded are eroded.

As he was leaving the constitutional convention in Philadelphia, Ben Franklin was asked by a woman, “Well, doctor, what do we have – a monarchy or a republic?”  Franklin responded, “A republic, ma’am, if you can keep it.”

That is the challenge for every generation.  Constant vigilance is essential for liberty and the preservation of our republic. 

We must face the truth: As a nation, we are now doing a very poor job of preserving our Republic and our freedoms, which, in earlier times, distinguished the United States from authoritarian regimes in other nations. Consider the following:

War Power
The War Power Clause of the Constitution makes it clear that Congress, not the President, has the sole power to decide whether to go to war.  Yet, without a congressional determination that our country should engage in war, President Bush illegally invaded and occupied Iraq, a nation that posed no danger to the United States.

Without any authorization from Congress, President Obama has ordered military strikes against Libya, as well as killings from bombs delivered by drones (which have resulted in the murder of innocent civilians – men, women, and children) – all of which are acts of war – in Pakistan, Afghanistan, Yemen, and Somalia. 

All of this has been in blatant violation of the War Power Clause, yet when these usurpations have been challenged in our judicial system, the courts have, in derogation of their constitutional responsibilities, begged off, refusing to decide the vital constitutional issues on the purported basis that they are “political questions”.  

Due Process
The Due Process Clause of the Constitution provides that no person shall be deprived of life, liberty, or property without due process of law.  However, without any semblance of due process, President Obama has targeted U.S. citizens for assassination.  President Bush was justifiably criticized for kidnapping, disappearing, and torturing people in violation of domestic and international law.  Now, President Obama skips the kidnapping and incarceration and simply has them killed. 

In 2009, Obama argued he should have the power to indefinitely detain people because they might – in the future – prove to be a danger to the United States.  On New Year’s Eve (2011-2012), Obama signed into law the National Defense Authorization Act (“NDAA”), which provides that our government can kidnap people and detain them indefinitely, up to the rest of their lives, without any charges, trial, legal assistance, or right of habeas corpus.  The NDAA is perhaps the most un-American, subversive statute ever passed by Congress and signed into law by any U.S. president.

Separation of powers and the constitutional system of checks and balances.

The separation of power and the system of checks and balances provided for in our Constitution has been eviscerated.  As the President has assumed more and more dictatorial powers, Congress has stood timidly by and the courts have, in several instances, simply dodged their vital constitutional duties. 

Congress has passed laws, then instead of the President vetoing them and providing the opportunity for Congress to override the veto, Presidents Bush and Obama have unconstitutionally issued “signing statements,” indicating that they will not abide by the legislation.  Instead of abiding by the principle that “no person is above the law,” they seem to endorse the tyrannical sentiment of Richard Nixon that “when the President does it, that means it is not illegal.”  

That assertion of dictatorial powers has been most clearly demonstrated when people in the Executive Branch (including the president) have violated federal laws by engaging in abuses such as torture and warrantless surveillance of U.S. citizens’ communications, in violation of federal statute and the Fourth Amendment’s protection against unreasonable searches and seizures.  When the illegal conduct has been challenged in federal court, the Executive Branch has asserted the court-made “state-secrets” doctrine, arguing that the court must dismiss the cases to prevent the disclosure of important state secrets.  Hence, the very perpetrator of criminal acts (i.e. the Executive Branch) is allowed to dictate to the courts whether the perpetrator can be held accountable under the law. 

Equal Protection of the Laws
Consistent with the observation in the Declaration of Independence that “all men are created equal” is the provision in the Constitution requiring the equal protection of the laws.  However, President Obama, who delayed until 2012 his utterance in support of marriage equality, still asserts that equal treatment under the law for gays and lesbians who want to marry is solely a matter for the states to decide.  Apparently, for Obama, federal protections for equal treatment under the law are appropriate for people of different races or religions, but not for members of the GLBT community.  That is a betrayal of equal treatment under the law, a core value of our Constitutional system.

The principle of equal treatment under the law has also been betrayed by the creation of a two-tiered system of justice, where the rich and powerful are not held accountable under the law, while everyone else is subjected to full accountability, sometimes with a vengeance (as under our Draconian drug laws, which have resulted in the incarceration of more people in the U.S. than are incarcerated for all crimes throughout Western Europe).  Among those who President Obama and his administration have excused from any accountability for their crimes are torturers, those responsible for illegal surveillance of U.S. citizens, and Wall Street criminals who committed massive fraud contributing to the economic crippling of millions of people throughout our nation.

The Supreme Law of the Land
Article 6 of the Constitution provides that the supreme law of the land is the Constitution, laws passed by Congress, and treaties ratified by the United States Senate.  That constitutional mandate, insofar as it relates to treaties, is now treated with disdain, as if our treaty commitments are optional, depending on the dictates of the President. 

For instance, President Bush determined that the Geneva Conventions did not apply to certain instances of torture authorized by him.  The Supreme Court held he was wrong. 

President Obama declared that, as to illegal torture and warrantless surveillance, he would not seek to have anyone held accountable under federal criminal laws, saying we should look forward and not backward.  That, of course, severely undermines the rule of law. 

Tyranny is the proper label for one who purports to determine against whom the law will be applied and under what circumstances.  In the case of torture, President Obama has aggravated the situation by ignoring the mandate in the Convention Against Torture, which requires every signatory nation to prosecute cases of torture as they do other serious offenses.  Obama’s failure to hold people accountable for authorizing or engaging in torture is itself a violation of the Convention Against Torture. 

Perhaps the most important treaty obligation is the duty to refrain from wars of aggression under the Kellogg-Briand Pact and the United Nations Charter.  A war of aggression is comprised of military aggression against another nation that has not attacked, or is not about to attack, the aggressor nation.  For a violation of that international prohibition, people were tried and convicted for aggressive war at the Nuremberg Tribunal. 

President Bush cavalierly disregarded the prohibition in attacking and occupying Iraq and President Obama has continued our nation’s tragic pattern of disregard of the prohibitions against aggressive war by ramping up the war in Afghanistan and ordering drone killings in sovereign nations that pose no threat of harm to the United States.

As is evident, our Constitution is being blatantly violated in many ways by those who are sworn to uphold it – and, in the process, our Republic is being transformed into an international outlaw, with a president that has exercised unprecedented abusive powers, a Congress that is sound asleep at the constitutional switch, and courts that too often step aside and find excuses for not deciding important constitutional questions.

On this Fourth of July, let us keep this in mind: Blindly following leaders who disregard the Constitution and undermine the rule of law is not patriotism.  In fact, it is a betrayal of the values that gave rise to our country’s founding and for which so many have fought and died.

Here’s to each of us doing all that is required to keep our Republic. 

Devan Bailey