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The End of the Constitution?

Posted by Rick · February 27th, 2004 · No Comments

ABC News today reports that Attorney General John Ashcroft, who previously subpoenaed medical records for women who had abortions at five university hospitals, is now requesting that six Planned Parenthood affiliates turn over medical records belonging to United States citizens.

Before the start of what is beginning to look more and more like a dictatorship (and it won’t surprise me if by 2008, we have a dictatorship, officially), this sort of thing would not have been possible. In “the old days” the United States had a document called the Constitution. It was written in the late 1700s and was intended to create a new country where the government had limited power over the citizens. The quaintly-named “Founding Fathers” of the United States felt this was important because they had experienced first-hand the problems that accompany an excess of governmental power.

Consequently, the Constitution of the United States was intended and deliberately written to restrict the power of the government. Today, increasingly, if we look to the Constitution at all, it has been re-interpreted as a document which permits citizens certain limited rights.

There has always been a tension between those who govern and those who are governed. And it’s not that hard to understand why it happens; anyone who has ever been a parent or a manager or supervisor knows that things are much easier when the people “running things” have enough power to do anything they may wish to do without restriction or consequences. Seriously, I don’t mean that to sound like a bad thing. It is, without a doubt, easier to run things when you have more power.

But that’s not how the United States government was intended to function. It’s not an approach which is conducive to freedom as understood by Americans for the last two-hundred-plus years. As I said, the Constitution was specifically structured, with much debate and argumentation, so as to delineate and limit the powers of the government which it authorized. The Constitution that created our government almost didn’t get passed because many of those who read it were worried about this new government and its Constitution.

For one thing, the Constitution specifically talks about how the government will be set up, what it will look like, the rough outlines of how it may operate (including the now old-fashioned concept of separation of powers) and what kind of powers it will have. Yet the Constitution hardly even mentions the people of the country. Where it does talk about the people, it talks about how the government may exercise authority over them; yet, again, it does this by talking about the limitations on the government. For instance, if the government wants to create laws against certain behaviors, the Constitution limits the way this can be done (e.g., no ex post facto laws or bills of attainder). If the government wants to tax people, the Constitution placed limits on how the government could do this. If the government wants to have a criminal trial of one of its citizens, the Constitution says that it can only do this with a jury. And so on.

In fact, the original Constitution almost wasn’t ratified, because some people were worried that it didn’t do enough to guarantee the rights and freedoms of the American people. It didn’t specifically address the problems which had caused Americans to overthrow the previous government. These folks turned out to be quite prescient!

And so, the Bill of Rights, which in retrospect apparently didn’t go far enough in specifying our freedoms, was created: The first Ten Amendments to the Constitution. (Sadly, it would have been eleven. The amendment which didn’t pass would have limited the power — and lifetime — of corporations. The United States, and probably the world, would have been spared a lot of heartache, since today corporations are generally more powerful and have more impact on our lives than the government.)

Because the Constitution was intended to spell out essentially what the government could and could not do in carrying out government functions — and because the Constitution was not intended to spell out what the people, the citizens could and could not do — it is actually a very short document. Vanity Fair and the Wall Street Journal have stories in them that use more words and more paper than the Constitution of the United States.

This is why it is so surprising that more people don’t read the Constitution. Even if you tack on the reading of the Bill of Rights, it doesn’t take all that long.

I’ll grant you that not everyone believes the Constitution or the Bill of Rights are straightforward documents to understand. As I said above, some of you are parents and supervisors and managers and business owners. Do I really have to remind you that if you make a rule, someone with an agenda — whether it’s your child, your employee, a vendor or customer — will work to find a way around it? And how do they do this? You think you’ve made a perfectly straightforward statement of how things should work, what you will and will not abide. Someone who doesn’t really want to have things go that way is going to look for a loophole; a different way of interpreting the rule.

It’s even worse when you deal with something — like the Constitution and/or the Bill of Rights — which tries to lay out a set of guiding principles rather than rules. Principles are, of necessity, often less specific than rules. A rule might say, “Hold my hand before crossing the parking lot” or “A legal marriage requires a marriage license, which anyone must get from the Justice of the Peace.” A principle, being more general, might say “It’s important for you to stay safe” or “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

But — as I am wont to do — I digress.

The fact is that the United States Constitution was intended to both structure and limit the power of the government to molest its citizens. For decades, we’ve been evolving our way blindly to a slow devolution of our understanding of that constitutional limitation. And under the current administration, that slow devolution has become a full-fledged, unabashed revolution. It’s not the kind of revolution where people rise up and overthrow a despotic government. On the contrary, this is a government-sponsored revolution to overthrow the will of the people. The Bush Administration today is doing things that former administrations would not have imagined doing in their wildest dreams.

In years past, when the government didn’t like ordinary lawful acts of its citizens, it was pretty much limited to unsanctioned surveillance. Because of the Fourth Amendment to the Constitution, the government had problems just arbitrarily demanding papers without probable cause and particularity. Even today, the Supreme Court and numerous state courts have been good about enforcing the Exclusionary Rule which discourages the government from abusing the Fourth Amendment. If they do, any evidence obtained either directly or derivatively is inadmissible in court.

However, when a theocracy is concerned about the violation of its heartfelt principles, it doesn’t matter whether it stops the behavior by force of law; it only cares that it stops the behavior. And that’s just what’s happening here. Having made a frontal assault on abortion via the court system for years, the Christian fundamentalists have become much more creative. Unfortunately, they are either unconcerned or — more likely — haven’t fully considered the consequences of their actions.

I seriously doubt that John Ashcroft is very concerned about the outcome of the cases he is pressing right now against Planned Parenthood, hospitals and doctors involved in abortions. Legally, he knows that the best he can do there is to stop them from performing the 2000-to-5000 “partial-birth” abortions done each year. But wouldn’t it be great if he could just intimidate people into not having abortions? Other anti-abortionists have tried this before without much success, but that was because they could only shoot a doctor here and there, or protest in front of a clinic here and there. What if you could bring the full power of the government to bear on these women by using the power of the Attorney General of the United States to subpoena medical records for anyone who even talked to an abortionist or went to a Planned Parenthood clinic?

Abortion: Pro or Con?

Don’t get me wrong — this is not a pro-abortion blog entry. The number of abortions [about 1.3 million] performed in the United States each year is obscene. But the decision to abort a fetus is legally that of the woman carrying the fetus. Lots of things I don’t like are nevertheless legal. And in a free society, that’s how things should be.

The problem with this approach is that it does too much, especially if it is successful — and too much of what the government is not supposed to be doing. The government should be about the business of enforcing the laws of the country in a way that is not inconsistent with the Constitution upon which the country is purportedly founded. What the government cannot accomplish by the proper use of law, it should not be allowed to attempt to accomplish by the perversion of the law. If the courts allow Ashcroft to pull this off today when he’s going after women who have abortions, what about tomorrow when he — or some successor Attorney General — desires to modify the behavior of others, but lacks the ability to do it by the legitimate exercise of the power of law?

And remember, right now the Repubicans are in power. Although I personally don’t understand it, some of you may very well support the agenda of the Republican party as currently constituted. (I say “current” because the Republicans haven’t always been corrupt and intent upon re-creating a feudal system.) In another few years, barring the official declaration of dictatorship, there may be Democrats in power and Republicans may find the precedents they are setting today used against them.

This is why I dislike what John Ashcroft and the current President of the United States (whoever that really is) so much. It’s not the particular beliefs they hold about abortion, some of which I share. It’s not the particular beliefs they hold about the need to stem the decadent slide of the United States, many of which I share. It’s the dismantling of the protections the founders of this country built into the Constitution. It’s the reversal of the intent, thrust and the very meaning of the Constitution; its raison d’être.

It’s the things they are doing to bring about the end of the Constitution.

Special thanks to my wife, Denise Chaffee, for bringing the Planned Parenthood article to my attention.

Categories: Politics-In-General


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