Thoughts on freedom, national security and Alito

The latest issue of the Democratic Leadership Council's New Dem Dispatch has a great column on the matter of NSA surveillance and how to balance personal liberties and national security in the war on terrorism. We are often given a false choice between personal freedom or protecting our nation from the very real threat of terrorist activity. We will get a very distorted view if we listen to the Republican Propaganda machine (I think of Ann Coulter yelling traitor at everyone who questions the Bush Administration's actions) or the Democratic Left which often leaves the impression that there is no real terrorist threat for us to fight. The DLC commentary which can viewed in full at http://tinyurl.com/7vlhf stated:

"Every day our security agencies operate without clear legal authority, the risk mounts of a backlash at home and abroad against clearly legitimate intelligence operations. And every day the president holds himself as above the law, America's reputation as a lawful nation suffers.""For their part, Democrats should focus less on hashing over the administration's past behavior, and focus more on working with responsible Republicans to set new and reasonable rules for the new war that began on 9/11. That's the right thing to do, and it will also help Democrats avoid the political trap Karl Rove so publicly set last week."

I especially liked the closing paragraph of the New Dem Dispatch column, "The war on terror does not require a president above the law, and the rule of law does not require unreasonable restrictions on surveillance. Rejecting false choices is the first step towards a real debate on how we can best protect the American people and their liberties and values." That is some very sound advice from the DLC on how to deal with the issue of terrorism and national security in the upcoming campaign.

TWO VIEWS ON THE ALITO NOMINATION

The DLC's New Dem Dispatch also had a recent post dealing with the Samuel Alito nomination to the U.S. Supreme Court http://tinyurl.com/8ltr6 which presents a case against confirmation of the conservative federal jurist. The DLC column states that Alito clearly "embraces an 'originalist' view of constitutional interpretation, along with the recent, unbalanced conservative tendency to police congressional powers but not executive powers." The DLC commentary suggested that Democrats should "focus on Alito's judicial philosophy, and discard the personal attacks that figure so prominently in some of the interest-group campaigning against his confirmation."

Another perspective on the Alito nomination was presented by Senator Robert Byrd (D-WV) http://tinyurl.com/7tt7j in a Senate speech. Senator Byrd, a former Democratic Senate Majority Leader, made a forceful case for supporting the Alito nomination. The West Virginia Senator decried "the virulence of some outside groups from both sides of the political spectrum" which funded "multi-million dollar advertising campaigns either to proclaim or denigrate Judge Alito’s fitness for the position raged across the airwaves." Byrd stated that " a solemn, constitutional responsibility is not helped when it takes on such a tone" and also criticized the rise of partisan grandstanding in confirmation procedures. The framers fo the Constitution, Byrd said "anticipated that the Senate’s confirmation or rejection of a judicial nominee would be based on the fitness of the nominee; not on partisan politics or extraneous matters." Byrd argued, "The Framers presumably did not expect the Senate to spend its allotted time on a nominee staging partisan warfare instead of examining his or her qualifications."

Byrd continued to make some very insightful observations about the confirmation proceedings and current philosophies about the role of the judiciary. "I regret that we have come to a place in our history when both political parties exhibit such a “take no prisoners” attitude. All sides seek to use the debate over a Supreme Court nominee to air their particular wish list for or against abortion, euthanasia, executive authority, freedom of the press, freedom of speech, wiretapping, the death penalty, workers’ rights, gun control, corporate greed, and dozens of other subjects. All of these issues should be debated, but the battle lines should not be drawn on the Judiciary. They should be debated by the people’s Representatives in Congress. However, too many Americans apparently believe that if they cannot get Congress to address an issue, they must take it to the court! As the saying goes, “If you can’t change the law, change the judge! This thinking represents a gross misinterpretation of the separation of powers: it is the role of the Congress to make and change the laws; Supreme Court Justices exist to interpret laws and be sure that they square with the Constitution and with settled law."

I agree with Senator Byrd that judicial activism has been out of control and our elected officials on both sides of the aisle are pandering to narrow interest groups rather than looking at the big picture. I also concur with Senator Byrd that Judge Alito is a decent man with a strong legal background who loves his country. It is the prospect of judical activism from the right that does raise some serious concerns about the Alito nomination. As a social conservative, I would welcome a Supreme Court that might be inclined to allow greater state regulation of abortion, uphold the use of school vouchers, fail to view gay marriage as a right and sanction appropriate punishment for violent criminals. As a economic populist, I do have concerns that a conservative Republican majority on the Supreme Court may harbor radical libertarian views on the power of government to regulate commerce.

The most frightening consequence of a solidly conservative Republican majority on the Supreme Court is that we may see a shift toward a narrow interpretation of the Consitution's general welfare clause which could invalidate all government regulation of economic activity including wage and hour laws and consumer protection statutes. The libertarian Cato Institute which would love to dismantle government published a policy paper back in 1992 http://tinyurl.com/c8myg which outlined the legal reasoning and prospects for a judicial shift toward "equal protection of economic liberty" - in other words - a legal argument that the Constitution guarantees a unrestrained marketplace. Since the inevitability of Alito's confirmation makes a conservative Republican dominated Supreme Court a certainty, let's hope that this concept never becomes the law of the land.