As I prepared for my first constitutional law seminar of the fall semester at John Marshall Law School in Atlanta last week, I was reminded again of the majesty of the document which forms the basis for my teaching role. I have always considered the Constitution of the United States to be the most magnificent document ever writ by the hand of Man. It is profound in its clarity of purpose and its deep understanding of human nature. It outshines by orders of magnitude other, more “modern” government blueprints; such as the multi-hundred page, detail-burdened European Union version.
It is the Constitution alone to which top government officials, including the President and members of Congress, take an oath upon assuming office. They swear to protect and defend the Constitution; not their opinions or their policies; not what their constituents might want from government; and certainly not what office holders themselves seek to have government do for themselves or their constituents. The constitutional framework our nation adopted after months of heated debate in 1788 was intended to protect the liberty of the citizenry, but equally to restrain and keep the government itself within bounds.
In 21st-Century parlance, individual liberty was to be the Constitution’s “default mode.” No longer.
Through a toxic combination of ignorance and deliberate indifference to the purposes and history of the Constitution, it has in many respects been so decimated as to provide currently only fitful protection for the liberty we as Americans were supposed to enjoy. This once-hallowed document now affords virtually no checks on the scope, power and cost of the federal government. Events of recent days and months have illustrated quite graphically this sad state of constitutional affairs.
The debate over construction of a Muslim community center in lower Manhattan a few blocks from the site of the former World Trade Center, confirms for us that the First Amendment’s oft-quoted guarantee that in America government cannot use its power to limit religious expression or practice, is honored as much in the breach as in the practice.
“Sensitivity” to the views of those who do not want a Muslim center to be built so close to “Ground Zero” now appears to trump the heretofore clear directive of the First Amendment — at least in the eyes of many who claim to understand and support the Constitution, including the former Speaker of the U.S. House of Representatives, the former Republican vice presidential nominee, and many current members of Congress.
“Fear” is another oft-played constitutional trump card. Ever since the World Trade Center was toppled by terrorist-piloted airliners on September 11, 2001, fear of another terrorist incident has time and again trumped the Fourth Amendment’s clear mandate against baseless government snooping. Thanks to the constitutional contortions launched by former President George W. Bush, and largely continued by the current administration, the government claims the right to listen at will to our phone and internet communications, and to monitor our driving patterns, our travel activities, and our spending habits.
“Public Safety” regularly is used by governments to make a mockery of the Second Amendment’s guarantee of the individual right to “keep and bear arms.”
“National security” has become the Holy Grail of government action to justify all manner of intrusion into the lives of the citizenry. No less a constitutional scholar than the former Attorney General of the United States, Alberto Gonzalez, opined preposterously in 2007 that the “Great Writ” of habeas corpus did not enjoy constitutional gravitas in the face of terrorist challenges to our security.
The “health-care crisis” has become the justification for government to drive the final stake through the heart of the Constitution’s “commerce clause”; crafted oh, so long ago as a simple guarantee of freedom of interstate commerce.
Were James Madison alive today, he would weep for America; and his tears would not be tears of joy.