We’re in danger when the conservative instinct to defend law and order … defies law and order.
Conservatives often talk about the Constitution and the importance of defending our founding charter. After all, without a strong rule of law, we could never have the kind of society worthy of conservative standards to begin with. One of the reasons many cite for voting Republican in a presidential race, even if they dislike the candidate, is that they believe at the very least, the Republican will nominate palatable Supreme Court Justices who interpret the Constitution conservatively, in effect defending the aforementioned centrally important rule of law. At times however, it seems that some people are confused about the context of the ‘conservative’ label. A conservative (IE: originalist) reading of the Constitution is not the same as a conservative (IE: political) interpretation.
The latter is judicial activism. It in no way differs from the “discovery” of rights that created the precedents necessary for Roe v. Wade to exist – and we all know one of the foremost conservative arguments against that case is based on the fact that it stands on rather shaky constitutional grounds; a defense rooted in a pro rule of law argument. But, it appears that for some (in particular the many pro-life Congressmen and Senators who favor the PATRIOT Act), it’s only convenient to use a constitutionally based argument when it suits your particular issue politically.
So what then, are orginialists who support the Constitution regardless of emotional arguments on issues deemed politically conservative, to make of last week’s PATRIOT Act renewal battle? Ultimately, despite the disappointment, it seems that Republicans with libertarian and constitutionally conservative values are at least making some progress.
Particularly positive is the fact that many freshmen who won on the tea party wave are taking seriously the fact that the PATRIOT Act does violate the Constitution. As Rand Paul, who filibustered the act, eloquently noted on the Senate floor, we cannot preserve the 4th amendment without the 2nd amendment, or the 1st. In fact, we need the entire bill of rights; it cannot protect our freedoms unless it comes together as a whole.
In the Senate, with some shady maneuvering (what else is new?), Harry Reid bypassed Rand Paul’s attempts at a filibuster by tacking the vote to reauthorize the provisions onto the Small Business Additional Temporary Extension Act of 2011. While only four Republican Senators voted against the act, Heller, Paul and Lee (on the tea party side of the spectrum) and Murkowski (a moderate), we ought to keep in mind that one individual Senator has a great deal of power, and that three new Senators with tea party sympathies making a difference on this issue is a flicker of hope as we emerge from the darkness of the Bush era.
Later the same day, the House voted on the provisions, which were reauthorized with the support of 196 Republicans and 54 Democrats. Given Harry Reid’s suggestion that Rand Paul’s attempts to filibuster the PATRIOT Act indicate support of terrorism, I suppose the 122 members of his party who share Senator Paul’s position must also be in consort with our enemies. But Reid didn’t say that, did he? The Majority Leader’s insanity aside, it’s interesting to consider the House Republicans who voted against this renewal.
Out of the 31, 13 were freshman, which certainly indicates a step in the right direction. Particularly notable is the fact that two of the aforementioned freshmen are career military men – Allen West and Chris Gibson. While West, who openly ran as a tea party candidate, is considerably hawkish from a non-interventionist standpoint, he deserves credit for his statements against irrational nation building and these PATRIOT Act provisions. It clearly shows that, as someone with the experience, West is at least somewhat capable of distinguishing between needed powers and ‘it will keep us safe’ rhetoric; even if he supports a broader military presence than some of his more libertarian colleagues. Gibson is of interest because he has stated:
“Since the fall of the Soviet Union we have not reviewed in a meaningful way what our requirements are to protect our cherished way of life so that it reflects the realities of the 21st century, not the second half of the 20th century. There are still four combat brigades in Europe. I think they should be brought home. I don’t think we need forces in Okinawa. We have troops in over 100 different nations. We’re all over the world. I think we need to reassess that.”
Although the offending provisions were ultimately renewed, it’s promising to see that at least some newly elected Republicans are shifting paradigms. Genuine conservatives concerned with long term law and order are putting fidelity to the Constitution before partisanship and the kind of elitism that leads elected officials to believe that it’s permissible for controversial powers to be given to government as long as they are controlling things. The problem with that view, of course, is ultimately that trustworthy people won’t always be the ones in positions of influence, government almost never shrinks, and absolute power corrupts absolutely.
On the other hand however, we have Congresswoman Michele Bachmann as a negative example on this matter. She has branded herself as a tea party leader and constitutionalist – she’s even flirting with a presidential run. Despite these factors, Bachmann not only voted in favor of renewing the PATRIOT Act provisions in question, she passionately defended them on the House floor in her capacity as a member of the House Intelligence Committee.
Bachmann, however, struck a noticeably different tone when discussing the matter on Freedom Watch with Judge Napolitano last month. Pressing her about the inconsistency of her support of the PATRIOT Act and the Constitution, the Judge said to the Congresswoman:
“The PATRIOT Act lets federal agents write their own search warrants in violation of the 4th amendment – why did you vote to reauthorize it? Isn’t the whole concept of the PATRIOT Act, that the government can bypass the Constitution in hard times, one that you, and I, and that people who are faithful to the Constitution would reject?”
Instead of disagreeing with the Judge’s premise, Bachmann replied by beating around the bush with rhetoric about bipartisanship and technicalities regarding recent votes as not reauthorizing the act fully (not acknowledging the fact that she’s always voted for the act in any form it has been presented).
Congresswoman Bachmann said:
“What we need to do is we need to make sure that American’s 4th amendment right to be free and secure of unreasonable search and seizure by the federal government is protected, I don’t back down from that at all – or 1st amendment protections as well. We need to make sure that those amendments are held strong in a bipartisan manner.”
It’s clear that Bachmann never had the concerns she claimed to on Freedom Watch when pressed to discuss the matter. On the House floor after the vote, she explained her support of the ‘lone wolf provision’, which clearly allows federal agents to go after suspects without warrants. If that’s not a 4th amendment concern, then I don’t know what is. This all being the case, I’d simply request that Bachmann and her other ‘constitutionalist’ colleagues grace us with some intellectual honesty. Don’t pretend to be a defending our founding charter simply because it’s rhetorically – and electorally — pleasant to do so.
Truly upholding the Constitution requires taking the moral high ground and looking at the long-term picture. Sadly, most people seem to want instant gratification without considering the consequences. Not surprisingly, our representatives end up reflecting that fact; and then we wonder why our government is cumbersome, spends unsustainably, and is largely ineffective.
Ultimately, we need to remember that these issues are not limited to our time and a government we might trust to ‘protect us’ in the interim. Conservatives are falling into a dangerous trap if we allow ourselves to forget our nation’s history. Yes, times are different, but it doesn’t mean that we should abandon basic due process laws that have been valued in western jurisprudence for several centuries and enshrined in our Constitution. While I think Congresswoman Bachmann and many of her colleagues have the best of intentions, the fact remains that their conservative instinct to defend law and order is ultimately defying it.
As Senator Paul so eloquently put it:
“(The PATRIOT act allows) warrants that are written by FBI agents; no judge reviews them. This is specifically what James Otis was worried about when he spoke about general warrants that didn’t specify the person or the place, and were written by police officers…. We have checks and balances to try to prevent abuse ….. It will not always be angels in charge of government. You have rules because you want to prevent the day that may occur when you get someone who takes over your government through elected office or otherwise, who is intent on using the tools of government to pry into your affairs, to snoop on what you’re doing, or to punish you for your political and religious beliefs. That’s why we don’t ever want our laws to become so expansive.”
(For future reference, Young Americans For Liberty put together a timeline of the PATRIOT Act battle between Reid and Paul, spanning from February until the vote in May.)
The views expressed here are solely those of the author and do not necessarily reflect official positions of the RLC.