Need a Constitution? We’re Not Using This One


Supreme Court The Supreme Court is a highly activist group, pushing the country rapidly to the political right with the encouragement of the president and much of Congress. This distressing fact should not be obscured by occasional symbolic bone-tossing on social issues like same-sex marriage.

Let’s look instead, for a moment, at the origins of American civil liberties and at this Supreme Court’s view of some of those liberties.

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“A bill of rights is what the people are entitled to against every government on earth.” This was the express view of Thomas Jefferson, whose letter containing these words spoke for all the delegates to the 1787 Constitutional Convention who believed that the Constitution should include guarantees of individual liberties. Adoption of the Constitution became contingent on a promise to take up the Bill of Rights immediately, as the first 10 amendments to the major document. Among the rights guaranteed to the people was privacy.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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Now it is the government that has privacy – quite a great deal of it – and the citizens who have none at all. This not because the Constitution has changed or the courts have failed to read it. It is because judges have chosen to interpret its elegant but easy language in ways that turn it on its head. Just a few examples:

* NewYork’s “stop, question and frisk” policy has been ruled constitutional by the Supreme Court. To comply with the much-publicized recent ruling by a federal district judge, the police need only stop and frisk a lot more people – white ones.

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* If you have friends in certain political circles, you risk getting a national security letter from the FBI, which will tell you that you can’t tell anyone you received it, not even a lawyer. The First Amendment says we all have the right to petition government for redress of grievances; that is, to go to court. Really?

* If you’re James Clapper, director of national intelligence, you can lie to Congress – a crime – about the extent of domestic surveillance, remain free and keep your lucrative job. If you’re Edward Snowden, you can be hounded to the ends of the earth for telling the truth about the same thing.

* The First Amendment guarantees free speech, and the Fourteenth guarantees equal protection under the law. The Supreme Court holds, in effect, that speech and money are the same thing, so people with money have more speech, and more protection of it, than the rest of us.

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* The Sixth Amendment guarantees criminal defendants the right to “a speedy and public trial.” But under the shadowy, extraconstitutional category of “enemy combatants,” people not even formally accused of crimes can be held without trial and without bail for life.

john marshall * The history of war powers is complex and fraught with differing interpretations from the beginning. Still, it is difficult to picture any of the Founders contemplating a president who would maintain a “kill list” in the absence of a declared war. This is part of what John Marshall, later to become chief justice, said in support of ratifying the Constitution: “Shall it be a maxim that a man shall be deprived of his life without the benefit of law? Shall such a deprivation of life be justified by answering that a man’s life was not taken secundem artem, because he was a bad man?”

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How is all this possible? Because the Constitution, far from the plain and simple, absolute and immutable roadmap to democracy that the Pharisaic right wing seems to perceive, is a remarkably brief and, perforce, very general document whose meaning is what the Supreme Court says it is.

What this means is that things may be bad, but they can get very much worse. You don’t want a court that erases Miranda and Roe v. Wade. You don’t want one that further erodes privacy rights and further promotes government secrecy.

The next presidential election is crucial because the next president will determine the kind of Supreme Court we have. Candidates who are on record as supporting the Patriot Act, the prison at Guantanamo Bay and the National Security Agency’s warrantless surveillance of domestic electronic communications should be summarily dismissed from consideration. Unfortunately, the only likely candidate who has stepped forward so far and supported the common-sense constitutional view of these things is Rand Paul. Paul is a Libertarian, and that is a dangerous form of political lunacy.

Paul’s view of the matter does, though, serve to illustrate a very important point: if ever there was a nonpartisan, purely American issue on which left and right could agree, this is surely it.

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