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=> The Dissoliving Constitution

Posted by Marcello (Guest) georgiomalik@yahoo.com - Friday, January 28 2011, 20:48:46 (UTC)
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The Dissolving Constitution
by Paul Craig Roberts Jan 28, 2011

While people in Tunisia and Egypt have taken to the streets in attempts to gain their liberty, Americans are losing their liberty with minimal protest. Even the American Civil Liberties Union seems unfocused. At a time when we are being surrounded by a police state and the federal executive judiciary is being taken over by the Federalist Society and unitary executive theory that places the president above the law, we need a heightened appreciation of civil liberty and the Constitution on the part of the American people. The American people need to come together and to take a united stand against the police state and unaccountable executive branch power.

During my many years of writing in defense of the law as a shield of the people instead of a weapon in the hands of the state, I have identified two important reasons that Americans are losing the protection of the legal principles that made them free. One reason is that among a significant portion of the population, especially those who think of themselves as conservative, there is indifference and even hostility toward civil liberties. The other reason is that Benthamite thinking has made inroads into the Blackstonian conception of law that is the basis of the Constitution. Jeremy Bentham argued for pre-emptive arrest before a crime is committed, for torture in order to obtain a confession, and for subverting the attorney-client privilege. Bentham's view's, fiercely hostile to those of our Founding Fathers, are now represented on the federal bench (federal appeals court judge Jay S. Bybee, for example) and in prestigious law schools (John Yoo, UC Berkeley, for example).

In chapter 3 of "The Tyranny of Good Intentions," Larry Stratton and I constrast Bentham's views with those of William Blackstone and our Founding Fathers. This article is about the division of the American people on the matter of civil liberty.

Court decisions by "activist judges" in behalf of criminals, abortion, homosexual rights, and agianst school prayer, all in the name of constitutional rights and civil liberty, have resulted in many Americans identifying civil liberty with procedures that provide protections and immunities for criminals and with judicially created rights that are to do with "social issues" such as habeas corpus, due process, free speech and association, long ago receded into the background and play scant role in Senate confirmations of Supreme Court appointees.

As a memeber of the ACLU, I look to the organization for the legal defense of our enumerated rights. The ACLU does stand up for the enumerated civil liberties spelled out in the Constitution. However, reading the current issue of the ACLU newasletter, I found myself wandering if the ACLU is unconscously contributing to the public's indifference and hostility to civil liberty. The newsletter list of highlights for 2010 presents the ACLU's activities as being concentrated in efforts to legalize homosexual marriage, to protect abortion from curbs, and to end the promotion of religious beliefs in public schools.

These are all issues that infuriate conservatives, and these are the issues that conservatives identify with civil liberties. Therefore, much of the public is not the least perturbed to hear that civil liberties are under attack when many understan civil liberties to consist of criminal rights, prayer bans, abortion, and homosexual marriage. This is dangerous, because in the public's mind, civil liberty can easily morph form procedures thatl coddle criminals to procedures that coddle terrorists. Should this occur, all would be lost. Defense of the enumerated rights would become "giving aid and comfort to terrorists."

It is not my position to argue the validity of ACLU's position on abortion and homosexual marriage. I am sure that the ACLU is convinces that homosexual and abortion rights are somewhere in the Constitution, but they are not enumerated rights, and the conservatives know it. When the Constitution and the Bill of Rights were written, I don't know if abortion and homosexual acts were the statutory offenses that they were during much of my lifetime, but they were not socially approved behavior that the Founding Fathers thought worthy of constitutional protection. The separation of church and state means no state church or taxpayer support. It does not mean no prayer in public schools. Ironic, isn't it, that today with faith-based initiatives we have taxpayers' money going to religious institutions, but no prayer in school.

When the issue is raised that perhaps the Constitution like common law can change as people's mores change, conservatives reply that if the Constitution can change, anything can be put into it or taken out, such as the civil liberties that I am complaining about Bush taking out. As for abortion and gay marriage, these are things that conservatives think activist judges and the ACLU put into the Constitution. Strictures against homosexuals and abortion should have been overturned legislatively, not by inventing interpretations of the Constitution.

The unintended consequence of the judicial branch exercising the legislative function in the name of constitutional rights has been the alienation of a large percentage of the population from civil liberty concerns. Today much of the population views the ACLU as a threat to society comparable to terrorism.

With the police state destroying protections agianst searches, the First Amendment, habeas corpus, due process, and the right to an attorney, with grand juty subpoenas issued to war protesters, with lists of American citizens to be assassinated, with ongoing war crimes committed in wars based in lies and deceptions, with the executive branch's seizure of the power to violate statutory laws agianst torture and spying without warrants, should the ACLU refocus, stop alienating conservatives, and bring the people together agianst the police state?

Should the ACLU be devoting its scarce resources to convincing courts to legalize homosexual marriage when the executive branch can declare people to be suspects and throw them into a dungeon? Reproductive rights and homosexual marriage will not stop people from being thrown into dungeons. If the enumerated rights are lost, no other rights are meaningful.

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