Cakes, Clerks, & the Precarious Rule of Law

By Julian Dunraven, J.D. M.P.A.

Recently, one of my Constitutional Law students asked me to distinguish between the case of the Christian cake bakers judicially ordered to bake a cake for a gay wedding against their will, and the case of Kim Davis, acounty clerk in Kentucky currently in jail for refusing a judicial order to begin granting gay marriage licenses.  My student already had an inkling that the principles underlying these two cases were quite different, and thus was unsurprised to discover that although I have great sympathy for the bakers, I have none for Ms. Davis, and believe she is exactly where she belongs. 

On first glance, these two cases do appear to be similar.  Both involve deeply pious individuals who belong to particular sects of Christianity which happen to teach that same-sex marriage is sinful.  Due to this belief, both the bakers and the clerk sought to abstain from any type of participation in same-sex marriages through their professional work.  Both were also thwarted by the courts.  However, it is the difference between them that really matters:  while the bakers were private citizens operating their own private business, the clerk is a publicly elected official operating a government office.  

In the case of the bakers, as private citizens, they have a property interest in their labor and products.  While government has a legitimate interest in ensuring they fulfil their contracts without fraud, when the government starts telling them who they must take as clients, even if they do not wish to do so, the government begins to impose a type of slavery, however minor it may be.  The Constitution’s Equal Protection and Due Process Clauses were never intended to prevent private citizens from discriminating as they saw fit; they were designed to ensure government did not do so, and treated all its citizens equally under the law.  The right of expressive association (and disassociation) contained in the jurisprudence of the First Amendment further supports this idea. 

Things changed during the Civil Rights Movement.  Then, the U.S. faced the loathsome problem of racism.  Congress tried to address the issue through the Civil Rights Act and other remedial statutes to forcibly eradicate such discrimination—in both the public and private spheres.  Knowing that this noble endeavor would fail under traditional readings of the Constitution (at least in the private sector), the Court supported the effort by taking an astonishingly expansive view of the Commerce Clause of the Constitution.  In short, the Supreme Court declared that, if you were engaged in a business that somewhere, somehow, used a part or ingredient that had been shipped in interstate commerce before it became your final product, then the government could regulate you as engaging in interstate commerce.  In other words, if you bake cakes in Oregon, but use flour from wheat which was grown in Nebraska, then you have engaged in interstate commerce.  That rather all-encompassing rationale allowed the government to carry out a variety of anti-discrimination efforts, not just in the public sector, but in private business as well.  

Of course, with that sort of rationale, one wonders if there is anything the government cannot regulate.  For many years, the answer was that there was nothing the government could not reach.  It is only in the last few years the Supreme Court has recognized that it may have built a bridge too far, and begun to scale back the scope of its Commerce Clause interpretation.  After all, today it may not be needed.  Any business that openly discriminated on the basis of race, gender, or even sexual preference would quickly be boycotted and driven out of business.  The market might have been seen as too slow for the days of the Civil Rights Movement, but our various media forms allow it to act quite swiftly today, and it has shown a distinct distaste for intolerance.

   

Allowing the market to function on its own would be the best way to deal with the bakers.  It would allow them their fundamental freedom of association and expression, as well as protect their interest in their own labor and property.  It would also allow others to freely decide whether to frequent that shop.  If enough people did not like buying cakes from bigots, they would go out of business with no help from the law.  Unfortunately, our legal system has not returned to such a free market solution.  The courts are still largely using the interpretation of the Commerce Clause established during the Civil Rights Movement to navigate anti-discrimination legislation.  As a result, we get a situation in which private bakers find their fundamental freedoms oppressed by the very courts charged with protecting them.  Those courts also find themselves in the untenable position of making absurd balancing tests between someone’s fundamental freedoms on the one hand, and the government’s interest in obliterating invidious discrimination on the other.  It is unsurprising that individual freedoms rarely weigh more on such inappropriately weighted scales. 

So what do we do?  Well, the easiest solution is to appoint more judges who have greater respect for private property and labor, and are willing to restore the Commerce Clause to its original limited purpose of eliminating interstate tariffs and shipping requirements.  Although it would be more difficult, we could also narrow the scope of the Commerce Clause with a constitutional amendment, which would have the advantage of being far more lasting.  Until then, though, under our Constitution, as Justice Marshall stated, “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v Madison 5 U.S. 137, 177 (1803).  It may take quite a while to overcome the precedents already set.  What we cannot do, though, is discard the Constitution and the Rule of Law itself.  Yet, that is the very approach Kim Davis is advocating

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Kim Davis is an elected clerk for Rowan County, Kentucky.  Like the bakers, she is religiously opposed to the idea of same-sex marriage.  Thus, as County Clerk, she has refused to grant marriage licenses to same-sex couples.   She was sued, and asked the courts to allow her an exemption from the duty to issue such licenses because of her religious beliefs.  She lost: at the district level, on appeal, and before the U.S. Supreme Court (which refused her request without comment).  Now, a federal judge has jailed her for continually refusing to comply with his order to issue the licenses.  She remains in a cell.

One of my most honorable friends recently described Ms. Davis as a hero of conscience and integrity, a crusader for religious freedom.  This is an easy mistake to make.  Americans love an underdog, and staying true to one’s conscious while facing the entire weight of the American Judicial system is a hard image to resist.  However, it is a false image.  

Ms. Davis is not a private citizen.  She is a publicly elected executive charged with carrying out the functions of government.  Unlike private business, the Equal Protection and Due Process Clauses of the Constitution were aimed squarely at governmental officials.  The government does not get to choose which citizens it will represent and serve, and which it will ignore and deny; the government must treat everyone equally under the Law.  

According to her attorney, Ms. Davis has proposed severalalternatives.  These include having the chief executive of the county, or perhaps a state official issue the licenses.  Alternatively, she has proposed removing her name from licenses issued to same-sex couples.  These, solutions, however, are untenable.  Having some other office grant same-sex marriage licenses amounts to abdicating her duties as a county clerk, as well as imposing an additional hardship on same-sex couples which different-sex couples do not have to endure.  It also adds a disdainful stigma to same-sex licenses, which would be massively amplified by also removing the county clerk’s name from the documents.  This sort of treatment is reminiscent of the separate and not-so-equal practices of the reconstruction era, and stand as flagrant violations of the Equal Protection Clause.

Ms. Davis claims to understand all this, but maintains that, because of her deeply held religious beliefs, she should be granted an exception to compliance.  Were she a private citizen, I would be happy to agree with her.  She is not a private citizen, though; she is a government official.  The First Amendment does not just grant individuals the free exercise of religion; it also prevents government from establishing any particular religion in law.  Yet, that is precisely what Ms. Davis is attempting to do.  

Ms. Davis did at least one thing correctly in making her argument in court, though.  As an elected official, she certainly had an interest in ensuring that her principles, which she was presumably elected for, were at least zealously defended.  But she lost.  Now, if Ms. Davis believes that the law her position operates under has become so onerous that she can no longer perform her required duties without violating her conscious, then she should resign.  Honorable resignation in the face of unethical behavior is, in fact, a recognized duty for many professions, including law.  As a private citizen, she would then be free to work to change the law or amend the Constitution.  Instead, she took the dishonorable approach and rebelled against it.

Unhappy that the courts ruled against her, Ms. Davis decided she did not need to perform the duties required by her executive position.  She went on to appoint herself a legislature of one, and demand legal changes to how marriage licenses are issued that the state has not seen fit to alter.  She has also placed her own interpretations of the law above that of the entire U.S. judiciary by blatantly refusing to comply with the judgement of the courts.  In doing all this, she has not only violated the First, Fifth, and Fourteenth Amendments to the Constitution, she is rebelling against the very framework of the Constitution itself and declaring her own whim to be above the Law.

The U.S. is a nation of Laws and not of Men.  We are governed through our rules and procedures, and not ruled by the arbitrary whim of individuals.  That is a precarious system, though, and requires constant vigilance to maintain.  None of us get everything we want out of it.  Elections and laws pass with winners and losers on both sides.  Yet, even in loss we believe in our Republic and its Constitutional system.  That is, in fact, what defines being an ‘American,’ for we are a people united, not by ethnic, cultural, or even national background—but by principles—specifically those principles embodied in our Constitution.  We expect an election, a legislative vote, or a court decision to go badly from time to time, and we work toward changing the next one.  Such disputes are not huge threats, but part of our democratic way of life.  When one of our own officials, however, chooses to rebel against the Rule of Law itself, they represent a much bigger threat than a single court decision with which we disagree.  They threaten the very heart of the Republic.

For this reason, I cannot applaud Kim Davis in any way.  Her audacious sense of entitlement to her position baffles me.  Perhaps it is because she took over from her mother and, over some decades, began to regard it as an inherited peerage rather as a civil service.  I cannot know her thoughts.  I do know, however, that she has set herself up, not as a defender of our Constitution and Rule of Law, but as its enemy in open rebellion.  For such traitors to the soul of our Republic, I can have nothing but utter contempt.

The Cyberbullying of Gay Youth

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

By now, most of you have heard the sad story of Tyler Clementi. He was that unfortunate freshman at Rutgers University whose sexual encounter with another man was secretly filmed by his dorm roommate and live streamed over the internet. Mr. Clementi then committed suicide by jumping of the George Washington Bridge, having first posted his plans to his Facebook page. The incident captured the attention of the national press, which has since worked diligently to highlight much of the bullying gay youth endure daily.

The Denver Post is no exception. In yesterday’s front page story, “Young, Gay, Bullied,” the Post focused on the high rates of depression and suicide among young gay students who are bullied by or isolated from their peers. Of particular interest is the relatively recent phenomenon of cyberbullying through blogs, YouTube, Twitter, Facebook, and other online sources. The Post cited several methods of addressing this problem, ranging from additional tolerance education and awareness programs to school administrative punishments to new legislation criminalizing cyberbullying. Such legalistic outcomes, however, would render an already tragic situation truly ghastly.

Do not mistake me. I truly do understand the problem and I do not doubt the plight of these young gay people. During my own time in high school, I was careful not to reveal my bisexuality to more than a handful of trusted friends. I was well liked, and had no desire to sacrifice social status to an identity which would have rendered me an instant pariah. Still, there were always rumors, inevitable suspicions, and occasional confrontations. Some of that was decidedly unpleasant. I was lucky, though. Those friends who did know accepted it without question. Many others would not have cared even if I had told them. And to my family it was a non issue. Not everyone is so fortunate.

Unlike other minority groups, gay students have no natural support network; their parents and siblings are generally straight. Often, families not only have difficulty relating to the problems faced by gay youth, they also actively disapprove of homosexuality. Peers, faced with overwhelming pressure to fit in, will often disassociate from gay students for fear of being labeled with the f- word themselves. Gay people faced with any one of these situations can and do feel incredible isolation and depression. That much is undisputed. Debates among scholars and theologians regarding the causes, nature, and morality of human sexuality, however, can fill volumes. It is not something to be addressed here at the Peoples Press Collective, which limits its scope to issues dealing with individual liberty, the free market, and limited government. Unfortunately, whatever one may think of their intent, many of the proposals listed by the Post to address the cyberbullying faced by young gay people negatively impact all three of those topics.

Focus on the Family correctly points out the danger to the marketplace of ideas and free religious expression with mandatory school programs and penalties specifically tailored to promote tolerance for homosexuality. Many mainstream religious traditions regard homosexual acts as mortal sins. For any public school administration or law to step in to enforce toleration and acceptance of homosexuality would usurp the province of religion to define virtue and thus violate one of the most cherished aspects of the first amendment. According to the Post, Focus on the Family instead would like to see bullying policies that protect all students against all forms of bullying for any reason. Even this, however, goes too far.

Apparently, our society has gotten to the point where at least some believe it is no longer acceptable to make gay people feel excluded or unwanted. Well and good. After all, gay marriage and civil unions are increasingly recognized in the various states and nations of the world. What about stoners though? I recall those semi-dazed individuals who would languish behind the main building of my high school, quietly smoking their marijuana while the rest of us went to class. Many students shunned them and sneered at the foul reek that hung about them. Yet, smoking marijuana for medicinal reasons is now legal in Colorado. California may soon legalize it for any reason. Should we now prohibit any exclusion or derision of such drug use? And what of students who espouse a belief in the doctrines of Stalinist Russia, Nazi Germany, or the KKK? Such beliefs are certainly legal. However, at my high school, anyone who publicly stated such beliefs quickly found themselves without a single friend and excluded from all social functions by their peers. Should such exclusion and public derision be prohibited? I think not.

The first amendment also protects the freedom of expressive association. We can choose with whom to associate. We are also free to state the beliefs and values that hold such associations together and exclude and disapprove of those who refuse to meet those values. Sports and athletics are perhaps the most obvious examples of this. While participation is voluntary, you must accept the rules in order to be included. Failure to play by those rules results in censure and exclusion. Though other human associations may not be so clear about their rules, the basic idea is the same. Politicians soon find themselves excluded from their own parties if they take positions in conflict with the party platform. Dinner guests, likewise, do not often receive a second invitation if they forgo the use of any utensils or decorum. Indeed, such behavior, if it becomes publicly known, can even cause a person to lose his employment.

While most of us appreciate our freedom of association, few people acknowledge the importance of disassociation and publicly expressed disapproval. While exclusion does make people feel terrible, it is the best tool we have to regulate social norms and values in a free society. In this way, everyone is free to choose their own social circles, promote the values which are important to them, and exclude those who do not share such values. The only alternative is to have a governmental authority dictate all values and associations. That is completely unacceptable—but it seems many people are calling for exactly that in an effort to address cyberbullying.

Obviously, any responsible school should have reasonable policies prohibiting bullying on its grounds. Name calling and similar behavior is not only rude, it is disruptive to the educational process and should be sharply corrected. In the event of a physical altercation, the law, in addition to any school policy, can bring severe penalties to the aggressor, though all people have a right to defend themselves and others. However, when school policy or legislation extends beyond the school grounds and classrooms into the social lives and online interactions of students, problems arise.

Unless an overt physical threat is expressed, cyberbullying, while often cruel and rude, is often no more than disdainful speech. Any attempt to limit it can run afoul of the first amendment. It has other unpleasant consequences as well.

By interfering in the social lives and expressions of youth, such policies take away any opportunity students may have to express and enforce their own values, and places that responsibility solely on a governmental authority. The proper response to a bully who is rudely or inappropriately deriding a friend in speech or in any online forum is to exclude the bully from social life. Conversely, if someone expresses legitimate condemnation of unacceptable behavior, the object of such condemnation should be excluded. In this way, students learn to stand up for their own values and regulate their own behaviors. It does wonders for their sense of self worth as well. When the state or school authority criminalizes such behavior and usurps all power to regulate associations and interactions, it teaches our youth to rely not upon themselves and their friends to solve problems, but on official authority. In later life, that produces well trained sheep without any self esteem who follow their employers without question and who expect governmental authority, not individual innovation, to solve all of their problems for them. That is not how a free people should live. That is how slaves and serfs live.

Every time law intrudes into the province of etiquette, these problems arise. As a lawyer, I know it for absolute truth that law is seldom the best solution to any given problem. It is vital to remember that the authority of law ultimately issues from the barrel of a gun. Law is force. It takes away any choice or option and imposes a permanent directive which must be followed lest one lose property, liberty, or even life. Etiquette, on the other hand, is wholly consensual, dynamic, and continually adaptable. Merely by exercising our right to associate and disassociate as we see fit, we express and enforce the values which we want to guide our individual lives.

At times, we will all face situations in which we are rudely or perhaps even unjustly excluded and demeaned by those who do not share our values. Certainly, young gay students face this more often than most, and I have the greatest sympathy for them and what they endure. The solution, however, is not to call for the school authorities or state legislature to enforce tolerance and acceptance of homosexuality, or whatever the case may be, upon everyone else.

Any victim of such ridicule should instead seek out a group of peers who share his values and stand ready to defend them and one another. Other students should express their own support of such individuals while publicly censuring and excluding anyone they believe is behaving rudely or inappropriately toward another individual. As families, friends, and community members, we should be encouraging our youth to express and defend our values. When we see others attacked for values we share, we should live by example and speak out in their defense, censuring and excluding bullies from our own social circles and networks. In this way, free people constantly foster and defend the values they live by—not by law, force, and compliance—but by individual choice, responsibility, and virtue. Moreover, unlike law, which imposes one standard on everyone, etiquette leaves each person free to find their own group of like minded individuals.

Having experienced the hardships bullies can impose first hand, I understand the deep desire people have to protect their children from enduring similar circumstances. As a current practitioner of corporate law with its stringent demands for professionalism, I abhor rudeness of any sort. Here at the PPC, we even created the “Political Breath” page to address issues of etiquette in political activism. However, much as I despise bullying and rudeness, I am unwilling to sacrifice my freedoms for the illusion of acceptance. Government cannot legislate social inclusion. It cannot grant self esteem. It cannot force virtue into human hearts. Only individuals have that power, and as individuals we must take the responsibility to do so.

U.S. Supreme Court Overturns Corporate Political Spending Ban

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

Do you believe the government should determine what the media can broadcast? Do you believe the government should decide which businesses constitute “media” and which do not? This is exactly what the Supreme Court ruled on yesterday in Citizens United v. Federal Election Commission. As Justice Kennedy wrote for the conservative majority:

“The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corporations-- including nonprofit advocacy corporations-- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Association publishes a book urging the public to vote for the challenger because the incumbent U.S. Senator supports a handgun ban; and the American Civil Liberties Union creates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.” 558 U.S. ___ (2010) at 20.

This law, according to the majority opinion, gives rise to “the dangerous, and unacceptable, consequence that Congress could ban political speech of media corporations,” on a whim. Even the People’s Press Collective, as private corporation not classified as traditional media, could have incurred criminal liability for advocating for or against any candidate within the statute’s time frame. Does this frighten you? It should.

The reason for this oppressive law is that it supposedly protects shareholders from being forced to fund political causes with which they disagree. It also prevents the appearance of corruption and quid pro quo arrangements between politicians and corporate interests. Finally, and most importantly, it allegedly prevents the distortion of the election process by the large accumulations of wealth held by corporations.

The Court swiftly dismissed the first two concerns. Corporate shareholders have the option of divesting if they do not like the actions of any particular company. However, even if this were not the case, limiting political speech only in the days immediately prior to an election but at no other time hardly shows a serious concern for shareholder interests. As to quid pro quo arrangements, we already have anti-bribery laws in force. Attempting to go further and prevent mere access or influence is not only impossible, it is an impediment to representative democracy itself. As it is, the law would continue to permit lobbying by those companies wealthy enough to engage in it, but prohibit other companies from engaging in fundamental political advocacy; hardly an equitable arrangement.

In his dissent, Justice Stevens argued passionately, if not plausibly, that the government has a strong interest in preventing the appearance of corruption corporate wealth can create. He further maintained that, as the First Amendment never mentions corporate entities, they should not be entitled to full speech and press protections. In fact, he maintains that corporate speech is adequately protected in the lengthy procedures set up to create 527 groups, PACs, and the cumbersome and expensive filing, reporting, and maintenance requirements such affiliations entail.

The Court maintains, however, that:

“The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings before discussing the most salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People ‘of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application.’ The Government may not render a ban on political speech constitutional by carving out a limited exemption through an amorphous regulatory interpretation.” Id. at 7 (internal citation omitted).

The Court goes on to point out that corporations, as affiliations of individuals, have long enjoyed First Amendment protections. Moreover, the text of the First Amendment itself is not limited to individuals, but protects the freedoms of speech and the press in general. The Court, “rejected the premise that the Government has an interest in equalizing the relative ability of individuals and groups to influence the outcome of elections,” and stated that, “The First Amendment’s protections do not depend on the speaker’s financial ability to engage in public discussion.” Id. at 37 (internal citation omitted).

In short, the First Amendment exists to protect the political speech of citizens, as individuals, groups, or corporations. “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each.” Id. at 24.

“The censorship we now confront is vast in its reach. The Government has muffle[d] the voices that best represent the most significant segments of the economy. And the electorate [has been] deprived of information, knowledge and opinion vital to its function. By suppressing the speech of manifold corporations, both for-profit and non-profit, the Government prevents their voices and viewpoints from reaching the public and advising voters on which persons or entities are hostile to their interests. Factions will necessarily form in our Republic, but the remedy of destroying the liberty of some factions is worse than the disease. Factions should be checked by permitting them all to speak, and by entrusting the people to judge what is true and what is false.” Id. at 38 (internal citation omitted).

This is as it should be. Despite this, though, the Court still upheld requirements for disclosing donors and issuing disclaimers as to who funds political advertisements. Only Justice Thomas objected to this. He points out the possible chilling effects on speech when activists target political donors with violence and intimidation, saying, “I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in core political speech, the primary object of First Amendment protection.” Id at 6 (Thomas, J., concurring) (internal citation omitted). Thus, he maintains we have still one further step to take on the road to truly free political speech.

As it stands, the Supreme Court has overturned the ban on direct corporate political advocacy. Corporations are still subject to contribution limits in candidate campaigns, as are individuals, and they must still disclose their donors and take credit for any political advertisement they produce. Nonetheless, this decision should be celebrated by anyone who still believes in the First Amendment. Here in Colorado, I am certain some enterprising company will use this decision to overturn our own state ban on direct corporate advocacy, which so closely mirrors federal law. I look forward to that day.

Judge Rules Against Bush for Wiretapping Without Warrants: Triumph or Tragedy?

By Julian Dunraven, J.D., M.P.A.

Honorable Friends:

All day long, I have listened to the shrieking of my conservative friends as they denounce the ‘terrible’ decision by a U.S. district court judge to end the Bush administration’s warrantless wiretapping program. ACLU v. NSA. It seems they think the honorable judge has put all of national security at risk with the naive notion that we can fight terrorism according to the same rules we use to fight common criminals. Knowing the miserable quality of reporting the major media sources continually exhibit on questions of law, I understand why they hold such a dismal opinion of this case. However, having read the honorable judge’s opinion myself, I am thoroughly convinced that she has actually strengthened national security, and that conservatives would be the last people to take issue with this decision if they only took the time to read it. It is based soundly in traditional conservative principles. Let me see if I can condense it here.

First, no state secrets were ever at risk. The court considered the legality of the wiretapping program based on statements the Bush administration has already made public: (1) The wiretapping program exists. (2) The Bush administration monitors communication between U.S. citizens and people overseas suspected of having some connection, to a terrorist organization. (3) The monitoring is conducted without warrants.

In considering these facts, the court looked to our history. It pointed out that searches and seizures without warrant were among the offenses committed by King George III against the American colonists prior to the Revolutionary War. These searches terrified the people and chilled any speech or publication that might criticize the King for fear of being labeled seditious. After the American Revolution, the Founders enshrined two amendments into the Constitution in order to prevent such abuses from ever occurring again. We now know these as the First and Fourth Amendments to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.--U.S. CONST. Amend. I.

The right the of people to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures, shall not be violated, andno Warrants shall issue, but upon probable cause, supported by Oath oraffirmation, and particularly describing the place to be searched, and the persons or things to be seized.--U.S. CONST. Amend. IV.

These two amendments work together to protect some of the most basic liberties we hold so dear. However, Congress is mindful, too, that when it comes to national security, the obligations of these amendments might be too cumbersome to carry out in the ordinary course of business. Thus, Congress passed the Foreign Intelligence Surveillance Act (FISA) as, “the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted.” 18 U.S.C. §2511(2)(f). This act sets up a special and secret court to grant surveillance warrants to the administration. Acknowledging the need to act quickly in matters of national security, it even gives the administration up to 72 hours after already beginning surveillance to seek a warrant. And so Congress has wisely provided for the administration to see to the needs of national security, while still permitting to judiciary to ensure the protection of civil liberties.

The Bush administration, however, has argued this is insufficient. It claims the President, as Commander in Chief of the Armed Forces under Article II of the U.S. Constitution, should have the right to see to matters of national security as he sees fit, independent of the laws of Congress and the warrant reviews of the judiciary. As one of the great Founders, James Madison, wrote in the Federalist Papers, though, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” THE FEDERALIST NO. 47. The court refused to allow President Bush to usurp both the Legislative and Judicial branches of government, and reminded the President that he is sworn to uphold and abide by the entire Constitution, not just Article II.

“He has affected to render the Military independent of and superior to the Civil power. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation .”-- The Declaration of Independence

Thomas Jefferson wrote those words over 200 years ago describing a few of the offenses committed by King George III against the American colonists. Today, they could as easily apply to the warrantless wiretapping program of President George Bush II—or they would had the court not stuck it down. In this case, the court defended the U.S. Constitution and the liberties it enshrines, protected the separation of powers from dissolving into tyranny, and provided legitimate means for the defense of this country—all principles long cherished by conservatives. In the end, the court managed to strengthen our national security, both against the terrorists that seek to destroy us from outside our borders, and the possibility of tyranny that could destroy us from within.

As the court noted in its conclusion, “Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution. As Justice Warren wrote in U.S. v. Robel, 389 U.S. 258 (1967):

Implicit in the term ‘national defense’ is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which makes the defense of the Nation worthwhile. Id. at 264.”