The Most Important Thing We Can Do
by Jacob H. Huebert
This is a written version of a talk given on March 5, 2011, at the Nullify Now convention in Cincinnati.
How can you challenge a federal law that violates the Constitution and, more importantly, violates your liberty?
Suppose, for example, you wanted to get rid of the PATRIOT Act.
I suppose you could try to elect a president who says he opposes the PATRIOT Act and its violation of civil liberties. If a candidate said he’s concerned about the government’s abuses under the PATRIOT Act, and if a candidate said the PATRIOT Act is “shoddy and dangerous,” and if a candidate said things like “There is no reason we cannot fight terrorism while maintaining our civil liberties” – maybe you’d vote for him and hope that things change.
Of course, in 2008, millions of Americans voted for a candidate who did say those things.
But when that candidate, Barack Obama, became president, did he make good on his promise to create more oversight over the use of National Security Letters and sneak-and-peek searches? Of course not. Instead, he did the opposite: He strengthened the government’s power to spy on its people without a warrant or probable cause, and he took the exact same views on government power that the Bush Administration had taken.
You could also try to elect a new batch of Congressmen – people who say they’ll respect the Constitution. Millions of Americans voted for Republican candidates who made that promise in 2010.
And then what happened when the PATRIOT Act came up for renewal a few months later? Of course all of these people who had been elected who claimed to love the Constitution – who insisted on reading the Constitution aloud (once, in part) at the beginning of Congress’s term – voted to renew the PATRIOT Act. Ninety percent of the Republicans in the House of Representatives voted to renew the PATRIOT Act without so much as a committee hearing, with no markups, no Amendments, and just 40 total minutes of debate.
And of that handful of Republicans who voted against the PATRIOT Act, most weren’t even tea party members. They were people who had been in Congress for years. Only eight freshman Republicans voted against the PATRIOT Act, and some of the biggest tea party figureheads who go on and on about the Constitution voted for it. No changes, no debate.
When House Democrats moved to add language to the PATRIOT Act that would have required that intelligence probes of U.S. citizens are conducted “in a manner that complies with the Constitution of the United States” only two Republicans voted for it: Walter Jones and Ron Paul.
Meanwhile, the other Republicans – such tea party icons as Michelle Bachman, Allen West, Kristi Noem – showed just how much they really care about the Constitution, for all their talk. They couldn’t even approve a sentence that said the law had to be applied constitutionally.
So electoral politics aren’t getting us very far.
The Rigged Game of the Federal Courts
What about the federal courts? They’re supposed to be the guardians of our constitutional rights, aren’t they? Granted, they do protect some people’s rights some of the time.
But if protecting your rights requires limiting federal power, don’t expect the federal courts to help. At all.
After all, the courts give all federal legislation what they call a presumption of constitutionality. That means that they assume that the federal government can do anything it wants to you unless you can prove that they can’t do a particular thing. And of course, no one can ever prove that because the courts read Congress’s powers so broadly.
The presumption of constitutionality actually turns the Constitution upside down. If the Constitution really is intended to constrain government and protect our rights, as we’re sometimes told, then all legislation should face a presumption of unconstitutionality unless the government can satisfy its burden to show that the law that it wants to enforce is specifically authorized in the very short list of powers given to Congress in the Constitution, to show that the law is necessary and proper for exercising that power, and to show that the law doesn’t violate any provision of the Bill of Rights.
But unfortunately, the presumption of constitutionality that the federal courts apply isn’t going to change. Ever. That’s because federal judges, including Supreme Court justices, are chosen by the President and confirmed by the Senate. And any person who a President would choose and the Senate would confirm is going to be someone they know they can count on to let them do pretty much anything they want.
It’s a rigged game.
And, by the way, if the federal courts can’t get you one way, they’ll get you another way.
When George W. Bush was president, he had the National Security Agency secretly spy on the phone calls and e-mails of American citizens with no warrant and no probable cause. A group of legal scholars tried to challenge this flagrant violation of constitutional rights, and in 2007 the case came before the U.S. Court of Appeals for the Sixth Circuit.
That Court said there was nothing that they could do about it. After all, no one could prove that they were a victim of the government’s spying because the spying was secret – and the government couldn’t say who it was spying on because it was supposedly a matter of national security. So no victim of this scheme – which everyone knew was going on and every reasonably intelligent person can see is unconstitutional – had any recourse at all in the federal courts.
Again, it’s a rigged game – rigged against you and your liberties.
Rights or Temporary Limited Privileges?
And maybe you’ve noticed that even when the federal government does acknowledge your liberties to some extent, it does so only grudgingly, and makes as clear as it possibly can that, in the end, the government reserves the right to do whatever it wants to you.
For example, take the District of Columbia v. Heller gun decision from a couple years ago, where the Supreme Court finally – for the first time in more than 200 years – acknowledged that the Second Amendment protects an individual right to own a gun for self-defense. In some ways, it seems like a great decision; I certainly congratulate the people who fought and won that case for their heroic work.
But have you actually read the decision by the Republicans’ hero, Justice Antonin Scalia? It says that even though the Second Amendment does protect an individual right, the right is “not unlimited” and subject to “reasonable” restrictions.
So what’s a reasonable restriction? Who knows? It’s whatever the Supreme Court says it is in the next gun case. If history is any guide, the right the Supreme Court ultimately recognizes will turn out to be very thin indeed.
When the lawyer arguing for Second Amendment freedom in that case argued before the Court, he had to recognize the government’s power to infringe your rights to even get the justices to take him seriously. Even while arguing the pro-freedom side, he had to admit that the government could reasonably stop you from owning guns the government deems inappropriate for civilian use, that it could force you to keep your guns locked in a safe, and that it could force you to do and not do all manner of things related to owning guns.
I’m a lawyer myself, and I don’t blame him one bit for that. When you’re arguing in a court, your job is to say what’s going to persuade the court, which won’t always match your philosophical beliefs. I get that.
But that’s the game you’re playing in federal court at best – acknowledging that the government has the power to do whatever it wants and begging it to carve out just a little area where you can have some liberty.
The Nullification Alternative