Conservatives and the Constitution

As we've noted many times before, Republicans in the post-Bush era, ostensibly led by the tea party movement, seem convinced that the Obama administration is taking the Constitution on a death march.

A woman Politico quoted in a story a few months ago traveled from Colorado to a tea party rally in Washington to remind the Democrats in Congress that the Constitution "wasn't written on toilet paper."

Ask virtually any member of the right-wing noise machine, and they'll not only level charges that Obama and his congressional allies are taking the country in the wrong direction, but that virtually every one of the Democrats' initiatives -- beginning with the stimulus and the health care bill -- is unconstitutional.

That's where I draw the line.

As I've pointed out for years, even before I became an attorney, "unconstitutional" is not a synonym for bad policy. Liberal moonbats arguing in favor of Roe v. Wade use the "U" word hysterically when defending their pro-choice position. What was begun by the far left has now been reciprocated by the far right.

But the difference between the two sides is that the far right's heroes -- most of the Bush administration, and specifically, Dick Cheney, Paul Wolfowitz, John Ashcroft and Alberto Gonzales -- spent the last 8 years in a no-holds-barred executive branch power grab, claiming plenary wartime powers, and more importantly, launching a full-on assault against the civil liberties not just of enemy combatants picked up in Iraq or Afghanistan, but American citizens.

Remember Jose Padilla? You probably don't.

Padilla was an unsavory character -- American-born and raised in Chicago, but a Muslim convert who was a member of at least one inner-city gang. In 2002, he was accused by the Bush administration of plotting to set off a "dirty bomb" in an unspecified major city in 2002 and having connections to al Qaeda, and arrested. However, instead of bringing charges against Padilla, trying him before a jury, convicting him and sending him away for life, Padilla was held without being charged for four years as an "enemy combatant" under highly specious legal theories about the president's wartime powers. When one circles back to the fact that Padilla was an American citizen, this is almost surreal.

I thought the fact that Padilla was held for four years without charges was abhorrent, in and of itself.

But it has come to light that, during his detention, Padilla was kept in solitary confinement despite being, by all accounts, a docile and respectful prisoner each day he was in custody; he was subjected to extreme temperature changes in his cell; he was forced to endure exceedingly long interrogation sessions without sleep; during these interrogation sessions, he was shaken and assaulted; he was threatened with being cut by a knife and having alcohol poured on his wounds; noxious fumes were introduced into his cell, causing severe physical reactions; he was put in stress positions for hours at a time; and he was kept in body manacles for literally years.

In the criminal context, just one of the above-referenced actions by the government would merit any confession or conviction being thrown out immediately. Such treatment of an American citizen accused of any crime is repugnant.

I echo Andrew Sullivan: This is more befitting of a dictatorship rather than the world's freest country.

I've implored readers and my conservative friends to go back to basics and read the text of the actual Constitution. Read the Federalist Papers. Read the works of the preeminent Founders, like Madison, Hamilton, Jefferson and Adams. There is a common thread running throughout these treasured writings -- a fear of tyranny. This fear is precisely why the Founders crafted the American system in the way they did -- a federalist system with power split between the national and state levels; three separate but equal branches of government at each; a system of checks and balances including the veto, the filibuster and judicial review; and a bicameral federal legislature. The Founders created our system carefully, and for a good reason.

Now think about Jose Padilla. We can discuss the rights of non-American enemy combatants at a later time. But what is unequivocal is that the Constitution does not take a vacation when it comes to American citizens, even when our country is at war.

Most conservatives will respond that Bush, Cheney, et al. were trustworthy men, and therefore their policies earned these conservatives' support. But we are a nation of laws, not of men. This is best encapsulated by Thomas Jefferson's famous quote where he asked, what can be said of our confidence in our fellow man? Answering his own question, Jefferson maintained that he must be bound "in chains" by the text of the Constitution. Jefferson, of course, was a man who had every incentive to push for an expansive conception of federal power -- one of colonial America's greatest leaders, he had a job in the first American administration, and eventually became our nation's third president.

Where liberty ends, tyranny begins. The Founders believed this. I believe this. But I'm not quite sure my fellow conservatives do anymore.

Conservatives in 2010 accuse the Obama administration of pushing "unconstitutional" initiatives, while ignoring the nearly decade-long assault by the Bush administration against the very text of the actual Constitution.

The hypocrisy is mind-boggling.