Constitutional Law, 1215-2011: RIP

Remember the Magna Carta? Issued in 1215, it's considered the basis for constitutional law in the English-speaking world. Until then, people's liberty was granted, or not, by the monarch. The 1215 document and its derivatives were forced on the person in power to limit the arbitrary removal of personal freedom.

photo by Jan

The rule of law under a constitution means that we are subject to a perceptible set of laws deployed through a process that the subjects of those laws create. As viewers of Law and Order know, in practice our goal of equal justice under law is some distance from perfection.

The last bill of 2011, signed by President Obama on December 31st, was the National Defense Authorization Act. This law contains provisions in Section 1021 that permit the President of the United States to order the military to hold any US citizen in jail as long as we're having a war on terror. This law applies worldwide, not just in Afghanistan, but in Brooklyn or Des Moines too.

The President said he really doesn't like this law, he's an expert on the US Constitution after all. But it was he who had the power to arbitrarily detain us shifted to him: Congress's original version of the bill lacked this provision. President Obama says he won't use this provision, but as the ACLU has pointed out, Section 1021 will still be in effect if there's a President Romney - or worse.

With a signature buried in the holiday kerfluffle, our government has removed 800 years of citizen protection from authoritarian fiat. Our legal safeguards from arbitrary detention weren't perfect, but now a single person commanding a huge and powerful army can select a United States citizen and for any reason or no reason, put them in jail - for the duration.