Saturday, November 14, 2009

Civil Rights Are Unconstitutional

Those law school professors sure are a caution, aren't they? They sometimes say the zaniest things. A professor by the name of Marci Hamilton, for example, claims that the Stupak amendment to the House Healthcare Reform Bill is unconstitutional. The Stupak amendment effectively rules out the use of taxpayer money to subsidize abortions. Professor Hamilton offers the following as one reason for thinking that this measure violates the Constitution:

First, the [Stupak] Amendment violates the Constitution's separation of church and state. The anti-abortion movement is plainly religious in motivation, and its lobbyists and spokespersons represent religious groups, as is illustrated by the fact that the most visible lobbyists in the Stupak Amendment's favor have been the Catholic Bishops. This is a brazen and frank attempt to impose a minority's religious worldview on the entirety of American healthcare. (A majority of Americans have favored a woman's right to choose for many years.)

Set aside the dubiety of the parenthetical remark. What she says in the rest of the quote could also be said of the Civil Rights Act of 1964, as John Pitney reminds us at National Review Online:

The Rev. Martin Luther King Jr. and his Southern Christian Leadership Conference, along with other religious leaders and groups, led the fight for [the Civil Rights Act's] enactment. "We needed the help of the clergy, and this was assiduously encouraged," said Senator Hubert Humphrey. "I have said a number of times, and I repeat it now, that without the clergy, we couldn't have possibly passed this bill."

Sen. Richard B. Russell of Georgia, a segregationist, agreed with Humphrey that the clergy were the bill's most visible lobbyists, but he was not happy about it. He complained that the clergy were using "powers of the Federal Government to coerce the people into accepting their views under threat of dire punishment" - a "philosophy of coercion" that he compared to the doctrines of Torquemada "in the infamous days of the Spanish Inquisition."

Now, let's ask Ms Hamilton whether anyone in her circle of friends and colleagues thinks the Civil Rights Act is unconstitutional. I doubt that she could find anyone who does, yet the logic of her objection to Stupak certainly leads to that conclusion. Pitney goes on to quote another constitutional lawyer who vigorously disagrees with the position staked out by Ms Hamilton:

[S]ecularists are wrong when they ask believers to leave their religion at the door before entering into the public square. Frederick Douglas, Abraham Lincoln, Williams Jennings Bryant, Dorothy Day, Martin Luther King - indeed, the majority of great reformers in American history - were not only motivated by faith, but repeatedly used religious language to argue for their cause. So to say that men and women should not inject their "personal morality" into public policy debates is a practical absurdity. Our law is by definition a codification of morality, much of it grounded in the Judeo-Christian tradition.

This is exactly right. The lawyer who wrote it was Barack Obama.



In all of the talk that we've heard so far about what an awful decision it was to bring the 9/11 terrorists to trial in New York City - a decision which certainly baffles me - there's one concern that I haven't yet heard raised. Among the reasons for thinking that this decision was among the most inept of this administration's remarkably rich record of ineptitude are:

  1. The fear it would provoke another terrorist attack against New York,
  2. It's likely there'd be attempts by terrorists to free the Gitmo Five,
  3. The fact that these are not American citizens but rather enemies of this country and should not be afforded the same rights and protections an American citizen would be given,
  4. The extraordinary cost to taxpayers paying for security and a trial that may last for years,
  5. The probability that the trial will be turned into a circus by the defendants,
  6. The very real possibility that one or several of the terrorists might actually be acquitted because they weren't mirandized or because the evidence against them is deemed inadmissable.

Parenthetically, if this last were to happen I think national outrage at Obama would be such that he would be finished as president. He would either be compelled to resign or limp along until the next election in which he would suffer the worst defeat in American presidential history. Mr. Holder assured reporters at a press conference yesterday that these men will be convicted, but I don't know how he knows that unless they plan to somehow rig the jury.

At any rate, all of the above are certainly legitimate concerns, but the question I had was who do the courts expect to get to serve on the jury? Once the trial begins it may prove very hard to keep the jurors' identities secret which means that they and their families may well be targets of terrorist reprisals. Knowing that, how can Messers Obama and Holder in good conscience put people in such a dangerous position when there's no need for it? They can promise the jurors anonymity, I suppose, but they certainly can't guarantee it. Indeed, I wonder if they've even given the matter any thought.

So why are they doing this if it's all unnecessary? The only explanation I've heard that makes any sense, alas, is that what they really want to do is use this trial to put the Bush administration and our intelligence agencies in the dock and thoroughly discredit both. If this is indeed what their goal is then they really are playing a dangerous and contemptible game. They know full well that intelligence agency personnel will be deposed on their secret intelligence gathering and interrogation methods and procedures. Not only will this mean that successful techniques will become known to those who wish to do us harm but also a lot of identities of informants and operatives will become available to the terrorists' allies around the world, which will at best cancel their usefulness and at worst place the lives of these individuals and their families in grave danger.

If the reason the administration has decided to try these men in a civilian court rather than by military tribunal is because they see a public trial as a political opportunity to destroy the people who kept us safe for eight years then the American people should be outraged. Perhaps there is some other reason that makes more sense and is a lot more noble but, if so, I haven't heard it yet.