Invoking the Dead Letter

by Dan Olson

Exclusive to STR  

Conservatives, civil liberties organizations, and libertarians are fond of invoking the protections of the Constitution in analyzing government actions, and in many cases point out that politicians sworn to uphold the Constitution seem completely ignorant of even the most basic tenets within the document. Even neoconservative Republicans whose actions reveal a deep-seated contempt for any limitation on government power cynically reference select portions of the Constitution. Those who study the Constitution regard it as exactly what it claims to be, the "supreme law of the land," and invoke the document as the ultimate authority on government conduct.  

While it is of course legitimate to point out the hypocrisy of these politicians' complete disregard for constitutional provision, these criticisms are overshadowed by the reality that the Constitution has long since ceased to be relevant in any significant way to modern American politics. Granted, courts generally grant citizens the protections of the Bill of Rights, but in the average court case, the government does not have much at stake. While the government respects some limitations most of the time, this does not mean that our government is truly limited in any real sense.  

When analyzing the behaviors of any institution, we can usually learn the most about its nature from how it acts in extraordinary circumstances. The most telling facts are usually to be found "on the margin," that is to say at the boundaries where the mundane becomes the extraordinary. If we look only at the fact that most people do not have their constitutional rights infringed by the state, it would seem that our government is well under control. But is a government truly limited if it respects people's rights just most of the time, and under normal circumstances?  

What one sees on the boundaries of normalcy, however, is that our government regularly violates its own rules in order to assert its authority. If no one ever staged large-scale protests, of course there would be no reason for the state to stifle dissent. If no one ever published material that others found offensive, and if no one advocated illegal acts on moral grounds, there would be no reason to outlaw "obscene" media or certain forms of speech. The cases where the state violates constitutional rights are those cases in which people are most in need of protection from the whims of government. Where in the First Amendment are the exceptions for that which others find distasteful, or for that which might inspire others to disobey the dictates of the state? In the cases where the state's power or influence are actually at stake, lawmakers, presidents, police and judges act in a completely unrestrained manner. Unsurprisingly, when the "impartial final arbiter" has chips at the table, it ceases to be impartial, while asserting its authority more vehemently than ever.  

Consider the number of laws there are regarding "obscene" materials; the strict limitations imposed by the FCC on media content; the "free speech zones" into which dissenters are forcefully corralled; the cases of accused "terrorists," whose rights to due process are cast aside without pause. Consider the number of laws granting emergency powers to the state during every conceivable exigency and conflict, the practice of conscription during war, the Kent State shootings, the unlawful use of the CIA against antiwar groups during Vietnam , and the arrests of peaceful protestors by the thousands at the Republican National Convention in 2004.  

These are the extraordinary situations in which government reveals itself to be unhampered by the aging document it claims to value so much. Though these situations are distinct from most common cases in which the government respects its limitations, they are not rare. They occur on a daily basis, at any juncture where the state has a vested interest in preserving or expanding its power. In these cases, government officials have little to lose and everything to gain by ignoring the academic limitations of law. How many police were fired or rebuked for the mass arrests during the RNC? Has President Bush been held accountable in any way for his disregard for due process? How many judges have been impeached or jailed for approving of measures that plainly defy the constitution?  

The Supreme Court once explicitly denounced this form of exceptionalism in which the state regularly exceeds its authority, in the case of Ex Parte Milligan:  

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism . . ."  

Sadly, that which comprises a "great exigency" supposedly justifying government excess has become less and less with time, to the point where now the contravention of law is the norm.  

In the majority of America , in what Washington politicians derisively call the "flyover states," there is a firm conviction that the Constitution is an able protector of our liberties. Those in power likely laugh among themselves at the idea that a piece of paper can restrain their massive political clout, the trillions of dollars at their disposal, and their millions of armed police and soldiers sworn to obey orders unquestioningly. The powerful and influential in government no doubt read countless academic declamations of constitutional violations, and then go about their business of legislating, policing, prosecuting, and judging unscathed.  

President Bush's administration has heartily embraced this tradition of unrestrained power, attacking antiwar groups on many fronts, depriving citizens of due process, and pressing for the dissolution or weakening of many constitutional protections. Exploiting fears of future terrorist attacks, the president has repeatedly turned his back on constitutionality, while avoiding any form of accountability. Bush's presidency has come to exemplify the unaccountability that makes unrestrained state power a reality in America today, as weak Democratic opposition and national-security justifications have created an atmosphere in which virtually any action is acceptable.  

In a striking description of this disregard for all restrictions on government, an aide to President Bush, talking to journalist Ron Suskind in 2004, talked dismissively of the "reality-based community," referring to the media and academia, and added:  

"That's not the way the world really works anymore. We're an empire now, and when we act, we create our own reality. And while you're studying that reality—judiciously, as you will—we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do."  

These words paint in vivid colors the disconnect between those in power and those who study and report the events of the world. The Constitution belongs to the world of ideas -- the "reality-based community" -- while the money, power, and influence of government reside in the realm where politicians are rarely if ever held accountable, and government excess has become the norm.  

Federal politics has become so flooded with money, and politicians so drunk with the massive power they wield, that basic standards of ethical behavior are a thing of the past. With these standards gone, politicians view their power as capital to be used for the advancement of their own careers. Only of secondary concern is the "public good," which is only considered insofar as it will yield votes that secure one's position of power. This attitude of unaccountable personal power politics has encouraged disdain for any limitations on government power. Congress has no qualms with legislating on any topic whatsoever that will gain votes or please wealthy interest groups, no matter what constitutional limitations are exceeded.  

Among Beltway professionals and journalists, this atmosphere of unrestrained power is well known. House majority leader Tom DeLay has recently come under fire for numerous "ethics violations" which are in reality common behavior among Congressmen, including receiving large sums of money from interest groups in exchange for influence in Congress. All that set DeLay apart from his colleagues was his lack of tact and position of leadership that made him an obvious target. Corruption in this form has become almost the norm, with Republican leaders responding to the allegations against DeLay not by denouncing such corruption, but by voting to loosen House ethics rules.  

In his 2002 article The Evil of Access, Mark Green addressed this rampant form of corruption, detailing the transfer of hundreds of millions of dollars between interest groups and politicians. One striking quote by Senator Zell Miller shows how far from the minds of politicians any form of constitutional limitation or public good truly are:  

"I'd remind the agribusinessman I was on the Agriculture Committee; I'd remind the banker I was on the Banking Committee . . . .  Most large contributors understand only two things: what you can do for them and what you can do to them. I always left that room feeling like a cheap prostitute who'd had a busy day."  

Just as should be expected from any person pursuing their own interests, politicians given such power and influence exploit their position for personal benefit. So long as they believe they will not be held accountable, there is no limitation on their actions. To claim that government officials pursue higher goals or are immune to the temptations of wealth is naive, and denies basic human nature. The wider contempt for constitutional limitation in every branch of government is merely a reflection of this individual mentality, which comes hand-in-hand with power. Just as politicians disregard ethical rules when given a chance to expand their power and influence, the government as a whole regularly ignores constitutional limitations when its authority is at stake.  

What should we make of the state of our liberties when the distinction between limited government and Jacobin totalitarianism has been blurred by the unfettered push of government toward ever-expanding power? What can be done to counteract the inevitable intrusions on freedom by such unchecked power? The tendency towards total power we witness every day cannot be mitigated by merely electing politicians with different priorities. So long as we remain apathetic and servile in the face of expansion and excess, those in power will continue to abuse their power.  

Any attempt to limit government will benefit the liberties of the people, but only insofar as people are willing to actively guarantee the preservation of their freedom. The Constitution is nothing but paper if people are unwilling to defend the freedoms it supposedly enshrines. To insist that the government will respect legal boundaries against their own significant interests, especially when accountability is rare, is to ignore both historical fact and the realities we are presented with every day.  

If any attempt is to be made to return government to some semblance of responsibility, Americans must assert their freedom in the face of government excess, and the myth of constitutional limitation must be dispelled. The only thing that can keep the powerful in check is the steadfast resolve of a people who value liberty above convenience. As Thomas Jefferson said, "Eternal vigilance is the price of liberty." We as a people have let down our guard, and are paying the price as our government inches towards despotism.