Category Archives: Constitution

It’s All About Power

You may think that the recent revelations about domestic spying by the Bush Administration have little to do with equal rights for gays, or for that matter, with the lawful behaviors of most American citizens.

You would be wrong.

Put aside the fact that gay rights groups in some parts of the country have been targeted for “monitoring” (along with Quakers, animal rights activists and other suspicious types) as presumed “terrorist threats.” Put aside the personalities and policy preferences of this particular White House. The Administration’s effort to exert and vastly expand unchecked executive power would be both dangerous and un-American no matter who was in office and no matter what the agenda.

Let’s review what we know: the Administration has been “mining” enormous amounts of data, obtained by “monitoring” (i.e. listening and reading) vast numbers of telephone calls and emails, without going to the trouble of obtaining a warrant. As a former lawyer for the CIA put it in a recent op-ed in the Washington Post, “it is clear that the courts did not have any role in reviewing this assertion of executive authority…[instead] an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans. That’s neither a check nor a balance.”

When speed and secrecy are concerns, government officials needing authorization for domestic spying can go to the special Foreign Intelligence Surveillance Act (FISA) court set up by Congress in 1978 for just this purpose. That court can approve eavesdropping in hours, even minutes, if necessary. In fact, the law specifically allows the government to eavesdrop on its own in a pinch, and justify its action to the court retroactively. The FISA court has certainly not been picky; since 1979, out of tens of thousands of requests, it has denied exactly four.  Congress’ purpose in establishing this semi-secret court was to ensure that federal power would not be misused, that it would not be deployed against political enemies or dissenters who simply disagreed with government policies. (Think Richard Nixon, or J. Edgar Hoover’s surveillance of “domestic enemies” like Martin Luther King.)

The Administration argues that it should not have to incur the “burdensome” task of complying with the Fourth Amendment.  Indeed, the administration has complained bitterly that even the FISA process demands too much: that it describe a target (the name is not required) and give a reason to spy on it. As one government official recently put it, “For FISA, they had to put down a written justification for the wiretap. They couldn’t dream one up.” (“Because I say so, that’s why” doesn’t constitute a justification.)

As we all learned in high school government class, our entire constitutional system is built on checks and balances. The founders had very good reasons for establishing a system that did not require citizens to simply trust that unlimited power would be exercised responsibly, and those reasons are—if anything—more compelling today. The issue is not whether we agree with any particular decision made, or action taken; the issue is whether the decision or action was legitimate, whether the applicable rules were followed. If the President is above the law, if—as Bush asserts—he has “inherent power” to do anything he and he alone decides is “necessary,” there is no law.

Let’s put this in less abstract terms. As Larry Johnson has recently written, under the logic of the Administration’s argument, if the President were to decide that pedophilia is necessary to save the nation, he would have “inherent authority” to engage in it. If you think that is absurd, it is; but just try to explain how it is logically different—and why.

Bush’s assertion that he has the power to do whatever he wants, whether there are existing laws against it or not, without the interference of those pesky courts and/or Congress, is no different from the arbitrary actions of innumerable law enforcement officers who decided before Lawrence v. Texas to enforce anti-sodomy laws against some people but not against others, or the decisions of southern sheriffs to turn a blind eye to evidence that “Bubba” was involved in that lynching down the road. As they used to say in the old Westerns, “I’m the law in these parts, fella.”

In a country without respect for individual rights and the rule of law, marginalized groups are always the first to suffer. But they aren’t the last.

  

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Snoopgate

Newsweek calls the revelation that the Bush Administration has been routinely spying on thousands of American citizens “Snoopgate.”

 

For his part, President Bush has angrily condemned the leak of information about his domestic spying program—indeed, he has shown far more righteous indignation than he demonstrated over disclosure of the identity of CIA agent Valerie Plame, even though that leak arguably did endanger national security.

 

Bush’s defense of his actions boils down to two claims: as President, he has “inherent authority” to do anything he damn well pleases; and following the law would be “too cumbersome.” The first claim is too specious to require rebuttal. (If the President has “inherent power” of that magnitude, why do we need the Patriot Act? And what about the President’s constitutional duty to uphold and obey the laws?) The second is equally without merit. As Newsweek notes, the special court set up by Congress in 1978 can approve eavesdropping “in hours, even minutes, if necessary. In fact, the law allows the government to eavesdrop on its own, then retroactively justify to the court.” The court has also looked favorably on Administration applications: since 1979, out of “tens of thousands” of requests, the court has denied exactly four.

 

Congress’ purpose in establishing this semi-secret court was to ensure that federal power would not be misused, that it would not be deployed against political enemies or others who simply disagreed with government policies. (Think Richard Nixon, or J. Edgar Hoover’s surveillance of “domestic enemies” like Martin Luther King.) And indeed, the New York Times reports that the FBI is gathering covert intelligence on such threats to American security as Greenpeace, PETA, Quaker anti-war groups, and—right here in Indianapolis—a Vegan Community Project. Recently, FBI agents interrogated a student at Dartmouth who was researching a paper on communism for his Fascism and Totalitarianism class, because he had requested a copy of Mao Tse-Tung’s “Little Red Book” through inter-library loan.

 

I feel safer already.

 

As columnist Marie Cocca has noted, we now have a government that spies on its own citizens, detains hundreds of people without ever charging them, and maintains prisons throughout the world where we evidently engage in what most people call torture. And the President justifies going to war in Iraq—despite the absence of WMDs—because that evil Saddam spied on Iraqi citizens, detained people without due process, and engaged in torture.

 

On December 9th, Doug Thompson, a former GOP operative who now writes for Capitol Hill Blue, reported on a meeting between Bush and Republican Congressional leaders on reauthorization of the Patriot Act. According to Thompson’s three (unnamed) sources, when a Congressional aide said there were valid constitutional concerns about certain provisions of the Act, the President screamed “Stop throwing the Constitution in my face. It’s just a goddamned piece of paper.”

 

Despite my strong disapproval of this Administration, I did not believe that story when I read it. But given the most current revelations, it sure seems a lot more plausible.

 

  

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A Constitutional Burden of Proof

There’s been a lot of discussion of a memo written by Samuel Alito, President Bush’s Supreme Court nominee, in which he stated “The constitution does not protect a right to abortion.” This sentence reminded me of language in Bowers v. Hardwick, since overruled, to the effect that the constitution does not protect a right to homosexual sodomy. Both statements are, of course, quite true. But both betray a growing—and troubling—conception of both government’s power and the purpose of the Bill of Rights.

There is, in fact, only one “right” protected by the Bill of Rights—the right to be free from government control over any of our behaviors or decisions, unless government has specifically been given the power to exercise such control. In other words, the citizen has no duty to find an affirmative right to engage in any particular activity; the burden of proof is on the government, which must demonstrate its authority to do whatever it is proposing to do.

Roe v. Wade is often said to have “legalized” abortion, but that is not an accurate description of the ruling, although the practical effect was the same. The Court said that the decision to abort or not prior to what used to be called “quickening” was one of many personal, “intimate” decisions that are none of the government’s business; that is, one of the many areas of our lives protected against the coercive power of the state. In Lawrence v. Texas, the case that overruled Hardwick, the Court said government simply lacks the authority to dictate the sexual conduct of consenting adults. 

If this seems like a quibble, it isn’t. We sometimes forget that the argument between the Federalists and anti-Federalists over the need for a Bill of Rights was never an argument about whether such rights should be protected. It was a debate between those who feared the future growth of state power and the “tyranny of the majority,” and thus wanted to “go on record” that certain government intrusions were off-limits, and those who argued that since the new government had only the powers specifically delegated to it, it simply had no authority to infringe individual liberties. They worried that efforts to list “protected” rights would allow people in future generations to argue that any rights not specifically listed were unprotected.

The Ninth and Tenth Amendments were the compromise: they reiterated that government does not have powers unless those powers have been specifically granted; and expressly stated that the failure to enumerate a right was not to be construed as evidence that such a right was not “retained” by the people or the individual states.    

Arguments that a “right to privacy” is not protected by the Constitution conveniently ignore the history and quite specific language of the Ninth and Tenth Amendments. That is why Judge Alito’s formulation concerns me.

I’m past worrying about the prospects for Roe—it won’t be overruled anyway. The Court will just keep limiting its reach until it is meaningless. I’m worried about a Supreme Court that begins each analysis by demanding to be shown where the rights in question are expressly protected. That isn’t the question. The question is: where is it written that government has been given the right to interfere? 

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Checks and Balances

Every high school government class begins with a lesson on “checks and balances.” We usually think of checks and balances as the three branches of government—executive, legislative and judicial—but there are other mechanisms, notably federalism and the Bill of Rights, that were intended to serve the same purpose.

 

Checks and balances grew out of the central preoccupation of those charged with creating a new government: limiting the exercise of government power. That concern was so overwhelming that it had undermined the first attempt to craft a federal system; the Articles of Confederation had so attenuated central power that the resulting government was too weak to be effective.

 

As James Madison memorably explained, dividing government into branches and levels having different responsibilities would set “faction against faction” and force deliberation and compromise. In the American system, the first question to be asked when the state proposes to act is: who decides? Is this a question that government has been empowered to get involved with in the first place? If so, which part of government?

 

With all the posturing and pontificating about “activist” courts, what we sometimes forget is that the judges are the ones who are supposed to say “no” when other parts of government overstep their authority—when the constitutional checks and balances are threatened. And efforts to extend government power beyond what our system permits are everywhere—and growing.

 

Here in Indiana, in the Executive Branch, the Governor has decided that he knows better than local school corporations what sorts of buildings they should build with their own local tax dollars.  In the legislature, Representative Pat Miller has introduced truly surreal legislation that would make criminals of women engaging in “unauthorized reproduction.” Women who want to become pregnant using artificial insemination, in vitro fertilization, or similar reproductive techniques would have to apply to the state for a permit, and only married women would be granted such a permit. (I am not making this up! What’s next, forced abortions for unmarried pregnant women?)      

 

At the federal level, we have a Congress that passed the Patriot Act without hearings (or even, in several cases, reading it), a Congress unwilling to check executive authority by insisting on its own prerogatives to declare war, or to meaningfully examine the qualifications of Presidential appointments. Our Imperial Presidency operates in virtual secrecy, crafting energy policy with favored lobbyists, detaining people without due process, and ignoring state laws with which it disagrees.  

 

Ultimately, this is the context within which we must analyze the President’s Supreme Court choices. While public debate has centered on nominees’ positions on abortion, or the politics of this or that nomination, it is much more likely that the real reason for choosing John Roberts and Harriet Miers had nothing to do with Roe v. Wade, or Presidential weakness, or gender politics. Whatever other beliefs either may hold, these are first and foremost individuals who favor reducing the constitutional checks on Presidential authority.

 

This isn’t about abortion—it’s about power.

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Civil Rights, Civil Liberties

Quick—what’s the difference between civil liberties and civil rights?

 

If you aren’t quite certain, you have a lot of company. The distinction is lost on most of my students, and—far more troubling—on a good number of city and state legislators.

 

Civil liberties are rights that individuals have against government. Citizens of the new United States refused to ratify the Constitution unless a Bill of Rights was added, specifically protecting them against official infringements of their “inalienable rights.” Among our civil liberties are the right to free expression, the right to worship (or not) as we choose, and the right to be free from unreasonable searches and seizures. After the civil war, the Fourteenth Amendment added the Equal Protection Clause, prohibiting government from treating equally situated citizens unequally. The Fourteenth Amendment also applied the provisions of the Bill of Rights to all levels of government—not just the federal government, as was originally the case, but also to state and local government agencies.

 

Only the government can violate your civil liberties.

 

Civil rights took a lot longer, and were a lot more controversial. It was 1964 before Congress passed the Civil Rights Act. Civil rights laws protect people against private acts of discrimination—discrimination in employment, in housing or education. The original Civil Rights Act applied to businesses engaged in interstate commerce—businesses that held themselves out to be “public accommodations” but were, shall we say, “selective” about which segments of the public they were willing to accommodate. State and local civil rights acts followed. Civil rights laws generally include a list of characteristics that cannot be used to favor some people over others: race, religion, gender, and so forth.

 

There was a lot of resistance to civil rights laws, and there is still a widespread, if covert, attitude of “What business does government have telling me I can’t discriminate?”  That resentment has redoubled as new groups have lobbied for protection.

 

The fiercest resistance has come from people opposed to extending civil rights to gays and lesbians. Those opponents have taken advantage of the widespread confusion of civil liberties with civil rights to argue that the Fourteenth Amendment already protects gays, so amending Indiana’s civil rights law, or Marion County’s Human Relations Ordinance is unnecessary. (After all, that’s easier than taking a public position that “those people” don’t deserve equal civil rights.)

 

I remember the astonishment of one of my African-American students when she realized that, in Indiana, people can be fired just because they are gay. “There is still a lot of discrimination against black people,” she said, “but at least there are laws on the books! They may not always work, but they’re something.”

 

A few months ago, the Indianapolis City-County Council failed to pass a measure that would have made discrimination on the basis of sexual orientation a violation of the City’s Human Relations Ordinance. Several of those voting against it said it was “unnecessary” because the Fourteenth Amendment already protected gays.

 

They knew better.

 

      

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