Earlier this week, Supreme Court Justice Antonin Scalia told an audience of law students that the Constitution does not protect against sex discrimination. In a great column for Time today, Adam Cohen outlines what has gone so wrong with the trend toward vehement--but inconsistent--Constitutional originalism that Scalia represents:
The Constitution would be a poor set of rights if it were locked in the 1780s. The Eighth Amendment would protect us against only the sort of punishment that was deemed cruel and unusual back then. As Justice Breyer has said, "Flogging as a punishment might have been fine in the 18th century. That doesn't mean that it would be OK ... today." And how could we say that the Fourth Amendment limits government wiretapping — when the founders could not have conceived of a telephone, much less a tap?
Justice Scalia doesn't even have consistency on his side. After all, he has been happy to interpret the equal-protection clause broadly when it fits his purposes. In Bush v. Gore, he joined the majority that stopped the vote recount in Florida in 2000 — because they said equal protection required it. Is there really any reason to believe that the drafters — who, after all, were trying to help black people achieve equality — intended to protect President Bush's right to have the same procedures for a vote recount in Broward County as he had in Miami-Dade? (If Justice Scalia had been an equal-protection originalist in that case, he would have focused on the many black Floridians whose votes were not counted — not on the white President who wanted to stop counting votes.)
Even worse, while Justice Scalia argues for writing women out of the Constitution, there is another group he has been working hard to write in: corporations. The word "corporation" does not appear in the Constitution, and there is considerable evidence that the founders were worried about corporate influence. But in a landmark ruling earlier this year, Justice Scalia joined a narrow majority in striking down longstanding limits on corporate spending in federal elections, insisting that they violated the First Amendment.
The view of the Constitution that Scalia champions—where corporations have rights that the Constitution’s authors never imagined, but women, minorities, and working people don’t—has become a popular political bludgeon for many on the Right. GOP senators pilloried now-Justice Elena Kagan during her confirmation hearings for offenses such as thinking Congress has the right to spend money, arguing the case against giving corporations the same free speech rights as human beings, refusing to judge according to a subjective view of “natural rights,” and admiring the man who convinced the Supreme Court that school segregation was unconstitutional.
An avowed allegiance to the original intent of the Constitution has become a must-have for every right-wing candidate. The talking point sounds great, but it hides the real priorities behind it. Anyone who needs reminding of what the fidelity to the Constitution means to the Right needs just to look to Scalia.
Yesterday's protest in front of the U.S. Capitol, organized by Rep. Michele Bachmann, had the usual cast of tea-party extremists. But this time, they were openly assembled by GOP leaders as an official House Republican event. Republican members of Congress stoked the crowd's extremism and gave them their seal of approval.
Dana Milbank described the scene:
In the front of the protest, a sign showed President Obama in white coat, his face painted to look like the Joker. The sign, visible to the lawmakers as they looked into the cameras, carried a plea to "Stop Obamunism." A few steps farther was the guy holding a sign announcing "Obama takes his orders from the Rothchilds" [sic], accusing Obama of being part of a Jewish plot to introduce the antichrist.
But the best of Bachmann's recruits were a few rows into the crowd, holding aloft a pair of 5-by-8-foot banners proclaiming "National Socialist Healthcare, Dachau, Germany, 1945." Both banners showed close-up photographs of Holocaust victims, many of them children.
Not just their extremism and frothing-at-the-mouth hatred of Barack Obama was on display. The crowd's hypocrisy was also on full display. Again from Milbank's column:
[A] man standing just beyond the TV cameras apparently suffered a heart attack 20 minutes after event began. Medical personnel from the Capitol physician's office -- an entity that could, quite accurately, be labeled government-run health care -- rushed over, attaching electrodes to his chest and giving him oxygen and an IV drip. ...
By the time it was over, medics had administered government-run health care to at least five people in the crowd who were stricken as they denounced government-run health care. But Bachmann overlooked this irony as she said farewell to her recruits.
"You," she said, "are the most beautiful sight any of us freedom fighters have seen for a long time."
Talk about hypocrisy - and not just about government-run health care. They say they're "freedom fighters." Whatever principle it is that motivates these extremists, it sure isn't freedom.
Where were they when President Bush claimed that simply by declaring an American citizen an "enemy combatant" - a decision unreviewable by a court or any other entity - he could have that person arrested without a warrant and imprisoned for life without access to a lawyer or an impartial judge?
Where were they when Americans were arrested at Bush events simply for wearing John Kerry tee-shirts and having anti-war bumper stickers? Or when President Bush planned a Total Information Awareness program, in which the federal government would regularly monitor our credit card purchases, our travel, our telephone records, and other everyday activities? Or when President Bush's warrantless wiretapping program was executed in flagrant violation of the law, to say nothing of the Bill of Rights?
Where were they? These "freedom fighters" did nothing.
Perhaps some enterprising journalist will ask people who attended yesterday's staged event where they were when freedom was genuinely threatened during the course of the Bush presidency.
Of course, journalists don't need to ask where the people who organized the event were while Bush was engaged in a war against America’s civil liberties: They were helping him.
Two of the most damaging legacies of the Bush Administration - the gutting of FISA through warrantless wiretapping, and the assertion of the almost monarchical "unitary executive" theory of executive branch authority - returned to center stage late last week, as the government responded to the suit brought by the EFF in Jewel v. NSA.
Glenn Greenwald writes in a post yesterday the disappointing direction Obama's DOJ has taken in regards to the warrantless wiretapping lawsuit the Electronic Frontier Foundation brought against the Bush Administration in October. On Friday the DOJ offered up its first response to the court. Greenwald:
[T]he Obama DOJ demanded dismissal of the entire lawsuit based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.
Greenwald's post involves a lot of legal heavy lifting, but it's very accessible and worth reading.
This development is scary, but sadly not the first time Obama's DOJ has taken cues from its predecessor. In February we noted with disappointment the continued use of the "state secrets" privilege in the extraordinary rendition case Mohamed et al. v. Jeppesen.
One of the much lauded compromises of the FISA amendments last year was the fact that while telecom corporations were immune from suit, government officials could still be brought to court for illegal wiretapping. So while the new FISA now allows for longer periods of warrantless wiretapping (7 days, up from 48 hours) and permits the destruction of wiretap records, the DOJ now aims to snatch away the single bone thrown to civil libertarians.
You can read the EFF's press release here.
There was good news today from the federal court of appeals in San Francisco today:
The Obama administration has lost its argument that a potential threat to national security is a good enough reason to stop a lawsuit challenging the government's warrantless wiretapping program.
A federal appeals court in San Francisco on Friday rejected the Justice Department's request for an emergency stay. The Obama administration, like the Bush administration before it, cited the so-called state secrets privilege as its defense. The government claimed national security would be compromised if a lawsuit brought by the U.S. chapter of an Islamic charity was allowed to proceed.
You may remember that we were more than a little disappointed when the Obama Administration decided to assert its state secrets privilege earlier this month. Today's ruling was a good sign our third branch of government is standing up for the rule of law.