George Bush is famously rumored to have said that the Constitution is nothing but "a g*ddamned piece of paper". With the FISA legislation brought to the floor of the House today, I think it's useful to reflect on the value of rights guaranteed by a Constitution to its citizens.
As described by (GG), our Congress wishes to enact a law that if the President says it was legal, nobody has any recourse. What Congress said was legal--is of no matter. What the courts determine to be legal--again, of no matter. What the Constitution itself says is legal--again of no matter. The suit is dismissed; and immunity is forever.
So will our Constitution protect us from an executive that takes such a wide-sweeping view of its powers? The experience with the Soviet Constitution makes very clear that the answer is: not by itself. Without a legislature, a judiciary, and a people ready to put its words into action, a constitution certainly can degenerate into nothing more than the fabled "piece of paper".
The Soviet Constitution of 1936--aka "The Stalin Constitution", on paper, in many aspects looks good in protecting some rights of the people of the USSR. But Stalin clearly had the same attitude towards this constitution as George Bush does towards ours. A few articles of that 1936 amendment that are relevant in light of today's FISA immunity action:
ARTICLE 125. In conformity with the interests of the working people, and in order to strengthen the socialist system, the citizens of the U.S.S.R. are guaranteed by law:
1. freedom of speech;
2. freedom of the press;
3. freedom of assembly, including the holding of mass meetings;
4. freedom of street processions and demonstrations.
These civil rights are ensured by placing at the disposal of the working people and their organizations printing presses, stocks of paper, public buildings, the streets, communications facilities and other material requisites for the exercise of these rights.
...
ARTICLE 127. Citizens of the U.S.S.R. are guaranteed inviolability of the person. No person may be placed under arrest except by decision of a court or with the sanction of a procurator.
ARTICLE 128. The inviolability of the homes of citizens and privacy of correspondence are protected by law.
Of course, this constitution did nothing to stop Stalin's purges, widespread spying on Soviet citizens, or widespread arbitrary arrest and detention of Soviet citizens. You may ask samizdat circulators whether they received their constitutionally-guaranteed printing presses courtesy of the Soviet state.
Historically, the difference has been that the legislature, judiciary, and people of the United States of America did stand up for the constitution, and used it to truly guide actions. But there is nothing in the laws of physics that requires this to be so. The Soviet constitution is a clear example: if the guy at the top orders lawbreaking in defiance of the constitution, and all the institutional elements of the state simply agree, and fail to hold lawbreakers responsible--then the resulting political system in no way reflects the constitution that ostensibly underpins it, and the rights of the people are not reflected in what actually happens in the everyday.
We are not yet in a Soviet-level rule of law. But, as Sandra Day O' Connor pointed out, "It takes a lot of degeneration before a country falls into dictatorship, but we should avoid these ends by avoiding these beginnings."
Let's work with everything we've got to turn around the FISA immunity, to make the legislature and judiciary do their duties, and prove that George W is dead wrong about the constitution.