There have been many comments in dKos (TMTC), and elsewhere ACLU, Schumer to the effect that our Constitution has been placed at risk by the Bush administration’s appointment of Roberts and Alito. These appointments have created a nearly controlling block (the RATS; Roberts, Alito, Thomas and Scalia) that with the periodic support of Justice Kennedy has begun to pillage fundamental human and constitutional rights for ideological purposes.
While the current conflict between Congress and the President is an important part of the effort to restore democracy and the rule of law to our nation, the fight with SCOTUS is just as important if not more so. Follow me below to find out why it is so vitally important to restore balance to SCOTUS and to consider how this might be done
To begin with, the RATS are a very real threat to a Democratic Congress (and to our democracy, but more on that later). There is likely no law to restore Constitutional rights or to shore up protection for those rights, which will not be challenged and brought before SCOTUS by conservatives. It is equally likely that no such law will withstand the ideological fervor of the RATS and their frequent (but not constant) supporter, Justice Kennedy. That may sound like a rather sweeping and blithe prediction of future action, but I need only reference recent remarks by Scalia to make the likelihood of such events clear (to some extent at least), and reveal the depths of intolerance that drives Scalia and by close and acknowledge association, the RATS.
"I’m in the business of enforcing the law."
What an ominous and chilling statement from a SCOTUS judge! This was from a debate last October with Nadine Strossen, President of the ACLU. BTW, a very special thanks to Maynard for transcribing these remarks. I could not have done this without his efforts. Note that Scalia does not say that his role is to interpret, or to resolve conflicts, or take any action that is consistent with the general notion of jurisprudence. He’s taking an entirely belligerent position that sounds more like "The Hanging Judge" George Jeffreys from the time of James II. This is NOT the same as Isaac Parker from the days of the American Wild West. The latter "Hanging Judge" was a far more sympathetic figure than either Jeffreys or Scalia. In this same debate, Scalia goes further in asserting
I apply the limitations upon democracy that the American people have adopted. And as long as those are not infringed, the constitution hasn’t been violated. It’s not up to me to decide...what ought the equal protection of the laws to mean.
The phrase "limitations on democracy" refers to the Bill of Rights and within the context of his statements is an assertion that the Bill of Rights is an impediment to democracy. Scalia’s democracy as he describes it elsewhere in the debate is free of context and sounds remarkably like an anarchic free-for-all. There is no way that one can possibly read such an interpretation into the writings of the founders or the framers of the Constitution, but it does give an insight into Scalia’s view of democracy...
Shortly after that, when Strossen points out that the writers of the Constitution frequently used broad, sweeping language that would give lie to his above assertions, he responds
When they said ‘due process of law’ they meant those rights of Englishmen in 1791.
Ah, so now he knows what the framers were thinking. It’s not what they wrote,it’s what Scalia has been able to discern through his extraordinary ability to read the minds of dead men.
Why this focus on Scalia? Because the RATS are very similar in their views and are unanimous in their support of the unitary executive theory... but only in so far as it applies to conservative authoritarian presidents. Roberts support for the unitary executive concept is ludicrous in light of his extensive involvement with the Ken Starr investigation of Clinton, but there you have it in his Appeals Court decision affirming the President’s right to deny habeas corpus.
If you think that’s bad, don’t worry, it gets worse once you understand the theory of the unitary executive. To put that in the proper context, I refer you to a quote from a treatise by Karl Mannheim and Allan Ides discussing the use of signing statements that are integral part of the unitary executive concept.
The Constitution enjoins the President to "faithfully execute the laws." By whose interpretation? If he is to execute the laws as he interprets them, then having to do so "faithfully" is rather pointless...If the President can execute the laws according to his own legal interpretation, then he can authorize conduct that Congress or the Constitution forbids. He can authorize warrantless searches of dissident organizations (such as the Democratic Party; cf. "Watergate"), military action against friendly nations (cf. Iran Contra and the Bolton Amendment), domestic spying in violation of the Foreign Intelligence Surveillance Act, or any action he deems necessary to protect national security. Indeed, he could wage war in violation of the War Powers Resolution, or by securing congressional assent with fabricated evidence. The options available to a unitary executive are limitless.
Now take a President invoking such a blatantly unconstitutional theory and give him a SCOTUS that somehow finds this perfectly OK. There is no stopping this juggernaut of authoritarianism and the country is ripe for the unthinkable. Put in this perspective, the arguments of Scalia are not conservative in the classical definition of conservatism; this is ideological activism at its very worst by those who envision an authoritarian form of government. It is the very same reasoning that gave us the infamous Dred Scot decision in 1856, widely considered to be the worst decision ever made by SCOTUS. Some legal experts have said that it took generations for us to recover from this decision. Do we need to wait for similar decisions on issues like abortion, habeas corpus or gender discrimination? Unfortunately, the horse is out of the barn already.
After agonizing over this issue for a while, I have come to the conclusion that the only logical way to deal with this group is to give them what they want, as much as it galls me (us?) to do so. We need to amend the Constitution to explicitly recognize rights, privileges and responsibilities that this Court would happily and aggressively overturnand to explicitly reject the unitary executive. In some sense this is farcical; the Constitution was deliberately written so that it would not be necessary to constantly change it every generation as the legal and political landscape evolves. But then you have the Taney Court that gave us Dred Scot and, lo and behold, the 14th , 15th and 16th amendments to the Constitution that specify it is not permissible to own slaves, it is not permissible to discriminate against people on the basis of the color of their skin and all have equal rights under the law. Now, 150 years later we have the RATS, and the need for sweeping constitutional change is again apparent.
Consider a more recent issue. Is it really necessary to have a constitutional amendment that specifies that it is illegal to discriminate on the basis of gender? One of the arguments against ratifying the Equal Rights Amendment was that this was obvious, and because it was already enshrined within the due process clause of the Consitution, unnecessary. But, just ask Lilly Ledbetter what happened when she appealed against obvious and odious gender discrimination to a Taney-style court. The necessity for enshrining the Equal Rights Amendment within the Constitution is apparent with this court, which will be with us for at least the next decade if not longer. Reintroducing and passing the equal rights amendment should be one of the objectives of the Democratic Party in the next few years.
The problem is that conservatives and conservatism are not going to go away, ever. And while we may occasionally go through periods of sanity and logic, the pendulum of public opinion will eventually favor these people again. I would argue that it is the patriotic duty of those who believe in the principles upon which this country was founded and who believe in the inherent worth and dignity of every individual, to lock the doors against authoritarian, exclusive and elitist ideologies when the opportunity is afforded us. We need to ban the unitary executive and enshrine that ban in the Constitution and I would argue that the time starts now, not in January 2009. Congress won’t listen until the people (us) start yelling. The longer that SCOTUS is able to use the unitary executive theory to support bizarre readings of the Constitution, the greater is the threat to our nation. Yeah, a bit hyperbolic, but if you can't go hyperbolic on an issue like this one, what's the point?
My apologies for such a long diary. Useful link: Dean