Remember John McCain’s recent pander dance to the fringe Right with a little speech on one of their favorite buzzwords judicial activism. Jeff Jacoby writing at the Boston Globe points out that if anything the courts have frequently been too passive, McCain’s Supreme wrongheadedness
But is it really the proper function of the courts to simply rubber-stamp laws passed by Congress and state legislatures? Is a law presumed constitutional merely because elected officials enacted it? “If my fellow citizens want to go to Hell,” declared Justice Oliver Wendell Holmes, a staunch advocate of judicial restraint, “I will help them. It’s my job.”
It was a clever remark – but a poor recipe for sustaining the Framers’ system of checks and balances, or defending important liberty interests against political encroachment. Quite the contrary: Judicial deference to the political branches has led to some of the worst judicial decisions in American history. Think of Plessy v. Ferguson, the 1896 case upholding a Louisiana statute that mandated racial segregation in public accommodations. The Supreme Court certainly deferred to the elected lawmakers who wrote that statute. It also helped lock Jim Crow in place for the next 60 years.
The 44th president will assume office with powers greatly enlarged by his or her predecessor. Drawing on recent precedents, the next president could launch preemptive wars with only minor interference from Congress, ignore the ancient right of habeas corpus and imprison political enemies, spy on American citizens without serious legal restraint, use practically any federal agency for political purposes, manipulate the press in ways inconceivable prior to 2000, corrupt the federal justice system for political gain, destroy evidence in criminal cases, use the Justice Department to prosecute members of the opposing party, offer lucrative no-bid government contracts to friends, expand the creation of private security armies, use torture, create secret prisons, assassinate inconvenient foreign leaders, circumvent laws with signing statements, and a great deal more. Such things are now possible because the system of checks and balances carefully written into the Constitution and explained in great detail in the Federalist Papers were weakened as a result of historical circumstances of the 20th century, but systematically and with great forethought by the administration of George W. Bush.
Said to be necessary in order to protect the country from terrorism, the expansion of presidential authority in truth was carried out by neo-conservatives who in the smoke and ashes of 9-11 smelled opportunity. The result is James Madison’s worst nightmare: the unification of once carefully separated powers of governance — executive, judicial, legislative — in the hands of a single faction along with substantial control over the press, radio, and television and an extensive police and surveillance apparatus he would have loathed.
As spot on as David W. Orr is in such a short essay he probably lets Congress off a little easy. The framers of the Constitution and their vision of three equal branches of government did not foresee what would happen during the Bush years. With a Republican majority in both houses and a Democratic party that was for the most part afraid of being portrayed as weak on national security, America lost one of the major forces that stood between genuine democracy and an imperial presidency. Instead of a Congress that exerted its rightful place in when and how wars were conducted, how legislation was applied and standing in the way of the deeply mendacious use of presidential power we had grave speeches, concerns expressed, vague threats and unenforced subpoenas issued. The founding fathers probably never imagined that there would come a time when Congress would be ready and willing to roll over like an obedient old dog instead of the first wall of defense against an out of control presidency.
On the May 14 edition of NBC’s Today, during an interview with former CIA agent Michael Sheehan about his new book, Crush the Cell: How to Defeat Terrorism Without Terrorizing Ourselves (Crown, May 2008), host Matt Lauer said, “You say we’ve got to use more undercover agents, informants, wiretapping, email surveillance, the works. The sound you just heard, Michael, is the far left, grabbing for their remote controls, ’cause they say, you’re going to do this, you’re going to trample civil liberties.” In fact, despite Lauer’s suggestion that it is only “the far left” that is concerned about “trample[d] civil liberties,” Americans across the political spectrum have denounced the Bush administration for alleged violations of civil liberties, including conservatives such as former congressman (and current Libertarian Party presidential candidate) Bob Barr, former Reagan administration associate deputy attorney general Bruce Fein, other members of the conservative American Freedom Agenda, and members of the libertarian Cato Institute.
In addition, Lauer did not challenge Sheehan’s assertion that the wiretapping and investigative authorities of the CIA, FBI, and NYPD have not “been abused over the last seven years.” Sheehan stated: “What you need is good oversight involved. You need oversight within the agencies; you need congressional oversight; oversight from the press — and make sure that when we give our CIA or FBI or NYPD the authority to do wiretaps or do investigations, that they’re not going to abuse it. I don’t think it has been abused over the last seven years.” Lauer did not point to any of the reports of abuses of authority by the Department of Justice inspector general or to the reports of dissent from within the administration regarding the warrantless domestic surveillance program run by the National Security Agency (NSA).
As Media Matters for America has noted, in a March 2007 report, the Justice Department inspector general (IG) found many “instances of illegal or improper use of national security letters [NSLs]” by the FBI between 2003 and 2005.
Let’s assume for a moment that was Matt’s idea of playing devil’s advocate. That still leaves him wanting for some excuse to be out the obvious abuses of domestic surveillance by this administration. The way it works from what I understand is that Mat goes over what is to be covered in an interview with the producer of that segment – the blue cards they hold have the questions and notes for the segment. Matt together with a producer that was concerned about presenting a more truthful picture of who objected to Bush’s domestic spying programs and why they have done so would be the absolute minimum requirement for people like Matt that have multi year multi million dollar contracts.
Never could an increase of comfort or security be a sufficient good to be bought at the price of liberty ~ Hilaire Belloc