Is our Constitution a suicide pact?
Last week’s column concluded with the unhappy prospect of what would happen in the War on Terror should the Iranians provoke the Israelis into a preemptive strike to remove Iran’s budding nuclear weapons capabilities. With the incapacitation and possible death of Israeli Prime Minister Ariel Sharon, the Middle East is an even more volatile region.
Hopefully, Sharon will recover; however, failing that, we should hope his successor will continue the bold policies Sharon has put in place. Namely, Sharon determined that a separate Palestinian Nation is needed if Israel is to find relief from the homicide bombers of the Iranian-backed Hamas and other Islamo-terrorist groups. The partially completed fence between Israel and what is becoming a new Palestinian State has reduced terrorist attacks upon Israeli by 90-percent. Meanwhile, Israel’s economy is, once again, booming and the tourists are beginning to come back. Nothing succeeds like success and Sharon’s vision of a Palestinian State living side-by-side with Israel in peace is approaching reality.
Meanwhile, the presence of the U.S.-U.K.-led Coalition forces in Iraq is relieving the Islamo-terrorist pressures upon Israel and giving al Qaeda fits in Iraq, in Afghanistan and all across the Crescent of Islam. With three successful elections in 2005, Iraq is on the verge of becoming an, albeit, imperfect democracy right smack in the heart of Islam. Meanwhile, our own imperfect Democracy still struggles over how to interpret our own Constitution.
For example, we have one faction – the Liberal Left – that thinks our Constitution is a “living” document to be re-written by judges who think that they, not legislative bodies, should write our laws. The other faction – the Conservative Right – sees our Constitution as a constant – a guiding set of principles -- that can only be amended by the electorate and Congress acting in concert.
Constitutional historian, Charles Warren, says, “…however the Court may interpret the provisions of the Constitution, it is still the Constitution which is the law, not the decisions of the Court.” For example, the U.S. Supreme Court erred badly in Dred Scott v. Sanford when it ruled that Black slaves were not citizens of the United States. The Court erred badly in Plessy v. Ferguson when it ruled that “separate but equal” facilities for Blacks were Constitutional.
Subsequent Courts overturned both Scott and Plessy, paving the way for the Civil Rights Acts of 1964 and others. Today, those who opposed the confirmation, of now, Chief Justice John Roberts, and are opposing the confirmation of Supreme Court nominee, Samuel Alito, are caught in a web of inconsistency and hypocrisy.
On the one hand, they applaud the Court when it reverses errors such as Scott and Plessy; however, when any Bush Supreme Court nominees take a view similar to Charles Warren that it is “the Constitution which is the law, not the decisions of the Court,” they wet their pants for fear the Court might decide the unborn are “persons” with Constitutional rights and/or that the 14th Amendment’s guarantee of personal liberty does not include a “right to privacy.”
But does Roe v. Wade, extend the personal liberty protection of the 14th Amendment to a “right to privacy” for known or suspected terrorists residing in the U.S. to the point that their telephone electronic communications with their overseas commanders cannot be monitored without a Court order? Electronic communications appear and disappear at, well, the speed of light. So, is it realistic in 2005 to think that the Foreign Intelligence Surveillance Act (FISA) of 1978 – that set up a “secret” Court to rule on applications for eavesdropping warrants – is quick enough in today’s post-9/11 terrorist environment?
The balance between personal liberty and national security is difficult; however, as Justice Robert H. Jackson, opined in 1949, “…if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
William Hamilton, a syndicated columnist, a featured commentator for USA Today and self-described “recovering lawyer and philosopher,” is the co-author of The Grand Conspiracy and The Panama Conspiracy – two thrillers about terrorism directed against the United States.
©2006. William Hamilton.