Safety First; The Constitution Second

you’re a regular reader of HOTM, you know where I stand on the recently
enacted FISA Amendments Act of 2008, which grants the government broad
new domestic eavesdropping powers and immunizes telecoms from previous
felonies (wouldn’t it be great if retroactive immunity from felonies
were available to all of us? Tragically, you and I don’t donate enough to politicians to qualify. But we can always hope).

Reading the transcript
of the signing ceremony
, I was struck by some of President
Bush’s rhetoric. The president said, “The bill I sign today will help
us meet our most solemn responsibility: to stop new attacks and to
protect our people.” And he reiterated: “Protecting America from
another attack is the most important responsibility of the federal
government — the most solemn obligation that a President undertakes.”

What’s odd about these statements is that they’re at odds with the Constitution itself. Article
2, Section 1
provides, “Before he enter on the Execution of
his Office, [the President] shall take the following Oath or
Affirmation:–‘I do solemnly swear (or affirm) that I will faithfully
execute the Office of President of the United States, and will to the
best of my Ability, preserve, protect and defend the Constitution of
the United States.'” Apparently, the framers thought the one thing so
in need of protection that they required it to be called out explicitly
in an oath is the Constitution. They didn’t see fit to have the
president swear an oath to defend the country, the currency, or
anything else — just the Constitution. For someone who purports to be
a “judicial conservative”, Bush’s reordering of Constitutional priorities are odd.

True, Article
4, Section 4
provides, “The United States shall guarantee to
every State in this Union a Republican Form of Government, and shall
protect each of them against Invasion; and on Application of the
Legislature, or of the Executive (when the Legislature cannot be
convened), against domestic Violence.” But there’s nothing in the
language of the Constitution providing that any of these
responsibilities is “most solemn” or “most important.” Those
priorities are external inventions, and certainly not in keeping with a
notion that we ought to interpret the Constitution based on its own
clear language.

we’re left with a question: why would a president who purports to be a
judicial conservative claim his most solemn obligation is to prevent
attacks on the nation, when the Constitution itself clearly provides
otherwise? If the president’s reordering of priorities is correct,
does it not follow that he might be impelled to protect America
at the cost of the
Constitution? Do we really want to empower any president, Democrat or
Republican, with such a convenient rationalization?
right is fond of pointing out that freedom isn’t free. And certainly
it isn’t: likely it can only exist and be preserved in the presence of
certain dangers (then-Secretary of Defense Rumsfeld himself pointed out
that “Freedom
is untidy
.”) Many of these dangers could be eliminated by a
totalitarian government, just as we could dramatically reduce crime by
eliminating Due Process and the burden of proof beyond a reasonable
doubt. Would the trade-off be worth it?

concerns me most is that President Bush’s stated priorities — Safety
First, the Constitution Second — might accurately reflect the current
priorities of a significant number of Americans. If our culture comes
to prize safety above all else, we’ll gradually cash in our freedoms
attempting to buy our safety. If that’s really the way we’ve come to
view the world, maybe McCain advisor Phil Graham had a point when he
recently described Americans as “whiners” and victims.”

is our precious inheritance. We can marshal it wisely, or we can place
it in blind trust, where, predictably, it will be lost.