FacebookTwitterGoogle+RedditEmail

The Dissolving Constitution

by PAUL CRAIG ROBERTS

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 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 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 to 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 confession, and for subverting the attorney-client privilege. Bentham’s views, 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 contrast Bentham’s views with those of William Blackstone and our Founding Fathers. This article is about the division of the American public on the matter of civil liberty.

Court decisions by “activist judges” in behalf of criminals, abortion, homosexual rights, and against 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 destroying morality. All the fights over Supreme Court appointments have to do with “social issues” such as abortion. The enumerated rights in the Constitution, 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 member of the ACLU, I look to that 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 newsletter, I found myself wondering if the ACLU is unconsciously contributing to the public’s indifference and hostility to civil liberty. The newsletter’s list of legal 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 bit perturbed to hear that civil liberties are under attack when many understand 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 from  procedures that coddle criminals into 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 purpose to argue the validity of the ACLU’s position on abortion and homosexual marriage. I am sure that the ACLU is convinced 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 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 be 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 abortion and homosexuals should have been overturned legislatively, not by inventive 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 against searches, the First Amendment, habeas corpus, due process, and the right to an attorney, with grand jury 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 against torture and spying without warrants, should the ACLU refocus, stop alienating conservatives, and bring the people together against 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.

Paul Craig  Roberts is coauthor with Lawrence Stratton of The Tyranny of Good Intentions, a book that documents the erosion of the legal principles that protect liberty.  His latest book, HOW THE ECONOMY WAS LOST, has just been published by CounterPunch/AK Press. He can be reached at: PaulCraigRoberts@yahoo.com

 

 

Paul Craig Roberts is a former Assistant Secretary of the US Treasury and Associate Editor of the Wall Street Journal. Roberts’ How the Economy Was Lost is now available from CounterPunch in electronic format. His latest book is The Neoconservative Threat to World Order.

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

May 30, 2017
Kenneth Surin
Can the Impossible Happen in Britain?
W. T. Whitney
Why Does the United States Beat Up On Capitalist Russia?
Patrick Cockburn
We Can’t Let Britain to Become a Vast ISIS Recruiting Station
Michael J. Sainato
Leaks and Militarized Policing: Water Protectors are Proven Right
Ted Rall
What Do the Democrats Want? No One Knows
David J. Lobina
The Israel-Palestine Conflict and Political Activism
Martha Rosenberg
Once Again, Mainstream Media Does Pharma’s Bidding
David L. Glotzer
Social Security: Clearing Up the Financial Nonsense
Edward Hunt
If They are Wrong the Planet Dies
Lawrence Wittner
How Business “Partnerships” Flopped at America’s Largest University
Guillermo R. Gil
Poems Must Never be White
Martin Billheimer
Strategies of Rose and Thorn in Portland
Tony Christini
What isn’t Said: Bernie Sanders in 2020
Chandra Muzaffar
Fasting for Palestinian Justice and Dignity
Clancy Sigal
Even Grammar Bleeds
May 29, 2017
Jim Kavanagh
No Laughing Matter: The Manchester Bomber is the Spawn of Hillary and Barack’s Excellent Libyan Adventure
Vijay Prashad
The Afghan Toll
Melvin Goodman
The Washington Post’s Renewed Attack on Whistlblowers
Robert Fisk
We Must Look to the Past, Not ISIS, for the True Nature of Islam
Dean Baker
A Tax on Wall Street Trading is the Best Solution to Income Inequality
Lawrence Davidson
Reality and Its Enemies
Harry Hobbs
Australia’s Time to Recognize Indigenous Peoples’ Sovereignty
Ray McGovern
Will Europe Finally Rethink NATO’s Costs?
Cesar Chelala
Poetry to the Rescue of America’s Soul
Andrew Stewart
Xi, Trump and Geopolitics
Binoy Kampmark
The Merry Life of Dragnet Surveillance
Stephen Martin
The Silent Apartheid: Militarizing Architecture & Infrastructure
Weekend Edition
May 26, 2017
Friday - Sunday
Anthony DiMaggio
Swamp Politics, Trump Style: “Russiagate” Diverts From the Real White House Scandals
Paul Street
It’s Not Gonna Be Okay: the Nauseating Nothingness of Neoliberal Capitalist and Professional Class Politics
Jeffrey St. Clair
The ICEmen Cometh
Ron Jacobs
The Deep State is the State
Pete Dolack
Why Pence Might be Even Worse Than Trump
Patrick Cockburn
We Know What Inspired the Manchester Attack, We Just Won’t Admit It
Thomas Powell
The Dirty Secret of the Korean War
Mark Ashwill
The Fat Lady Finally Sings: Bob Kerrey Quietly Resigns from Fulbright University Vietnam Leadership Position
John Davis
Beyond Hope
Uri Avnery
The Visitation: Trump in Israel
Ralph Nader
The Left/Right Challenge to the Failed “War on Drugs”
Traci Yoder
Free Speech on Campus: a Critical Analysis
Dave Lindorff
Beware the Supporter Scorned: Upstate New York Trump Voters Hit Hard in President’s Proposed 2018 Budget
Daniel Read
“Sickening Cowardice”: Now More Than Ever, Britain’s Theresa May Must be Held to Account on the Plight of Yemen’s Children
Ana Portnoy
Before the Gates: Puerto Rico’s First Bankruptcy Trial
M. Reza Behnam
Rethinking Iran’s Terrorism Designation
Brian Cloughley
Ukraine and the NATO Military Alliance
Josh Hoxie
Pain as a Policy Choice
FacebookTwitterGoogle+RedditEmail