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Wednesday, August 23, 2006

Choosing Life Over A False Constitutional Interpretation

The recent decision by Judge Taylor that found the Terrorist Surveillance Program unConstitutional is criticized by Jonah Goldberg. The issue of whether the executive programs breach the Constitution hinges on the flexibility of our founding document. In this case, a liberal found the Constitution inflexible and the law in breach of the 1st (Free Speech) and the 4th (Freedom from unreasonable search and seizure) Amendments.

Writes Goldberg:

Long before the concept of a living Constitution was hatched, the authors of the original version - as well as the courts interpreting it - understood that the executive branch has the authority and flexibility to conduct foreign policy and wage war. Terrorists may be criminals, but they aren't merely criminals. They're waging war against us and doing so in ways never imagined by the founders. They don't want territory or treaties, and they don't use armies and cannons. They want to make our own technology and freedoms into weapons they can use against us.

And so here is the real absurdity of the "living Constitution" school. Where the Constitution is supposed to be inert, they want it alive and mutating. But where the Constitution was intended to be flexible, intellectual rigor mortis has set in.

The "living Constitution" interpretation employed by Judge Taylor (and the SCOTUS of most of the 20th Century) treats the Constitution as akin to a book of statutes. This interpretation misses the point of the document.

It is the controlling set of principles upon which legislation or other laws must abide. The idea that as things change, develop and grow, it is archaic without massaging the words and original definitions is making it something it is not. It is a compact of the People wherein citizens ceded to government limited powers so as to protect their rights to Life, Liberty and Property. It also is a primer of the structure of government and how that government may act. It lays out over-riding principles that explain what our country is about.

That is why the mechanism to change any facet of this "etched in stone" document requires the passage of a Constitutional Amendment with approval of the states, not just a majority of Senators or a handful of Supreme Court justices.

A reasonable explanation is:

Article V of the Constitution provides two processes by which amendments can be proposed and approved:

Congress proposes amendments. As is the case with the flag burning amendment, both houses of Congress approve by two-thirds votes a resolution calling for the amendment. The resolution does not require the president's signature. To become effective, the proposed amendment must then be "ratified" or approved by the legislatures of three-fourths of the states. Congress typically places a time limit of seven years for ratification by the states.

The states propose amendments. The legislatures of two-thirds of the states vote to call for a convention at which constitutional amendments can be proposed. Amendments proposed by the convention would again require ratification by the legislatures of three-fourths of the states.


We must also recognize that as a statement of principle it contains immutable ideas of liberty that withstand the development of iPods, wireless telephones and microwaves. Just as "Thou shall not commit murder" can never be altered by fads, neither can the Constitution until the mass of Americans (and states) follow the Amendment process. These are the original entities that ceded their God-given rights or "Natural Rights" to the government (here is something by Samuel Adams).

The President under the Constitution maintains powers to defend the country from foreign attack. The investigations and surveillance employed to thwart terrorists may be improper in a criminal investigation. That continues to hold the due process rights for its defendants. This information being sought is to stop attacks like the attempted London jet bombings. That is within the Presidents powers as Commander in Chief. Such are explicitly stated under the Constitution.

Last, President Lincoln faced a similar guerrila-type, "asymmetrical" war in 1861. He suspended the Constitutional right of habeas corpus. He explained that in order to fulfill his duty to uphold the Constitution he had to maintain the life of the Union. That was the foremost duty he held. It was necessary to impinge of some lesser rights on a temporary basis to protect the Union. One has to sever a gangrenous arm in order to save the body. (See this Powerline discussion that alludes to Professor Paulsen's view and a counter argument by Professor Farber).

While the instant government intelligence processes do not breach the Constitution in my opinion, assuming they do, I choose the waiver of these "rights" (to allow the government to know that I have been travelling to Pakistan and calling Saudi Arabia for months before purchasing a one way ticket to Greece) over the death and destruction of a 9-11.

For a more learned analysis of the legalities of the surveillance program and Taylor's decision, review Orin Kerr's posts at the Volokh Conspiracy and this book.

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