Exactly a year from now, the first week of November 2008, you will
vote for Hillary Rodham Clinton.
Or Barack Obama. Or John Edwards. Or Chris Dodd. Or Dumbledore. Or
whomever. Just cross your fingers and pray that the non-GOP candidate
wins, whoever he or she is. Because the U.S. Constitution won’t survive
another Republican administration.
George W. Bush’s very first lie as president took place at his
inauguration when he pledged to “preserve, protect, and defend the
Constitution of the United States.” The Republicans under George Bush
have trashed the Fourth Amendment (warrantless wiretaps); whittled away
at habeas corpus (the Military Commissions Act); Tasered the First
Amendment (gag orders); and leveled the Constitution’s cornerstone
formula of checks and balances (why should Harriet Miers or Karl Rove
have to testify before Congress?). All of this is scary in its own
right, but something scarier has happened, something that’s going to
make the task of reclaiming the country trickier than simply tossing
Bush out next November.
The Bush administration has gotten the public so accustomed to a
neutered Constitution that we’re facing a growing constitutional crisis
at the state and local level.
Did you hear that the public library in Topeka, Kansas, censored an
employee from talking about the Lawrence v. Texas (gay rights)
ruling? Or that in Fort Lauderdale, Florida, the city attempted to
limit the number of protestors that were allowed to attend a
demonstration?
Or how about right here in liberal Seattle, where our own mayor,
Democrat Greg Nickels, has made a habit, like President Bush, of
ignoring directives from the legislative branch? When the council
passed guidelines governing how the city awards its public defender
contracts (a way of ensuring that the city wasn’t discriminating
against certain public defense firms), Mayor Nickels ignored the
legislation. When the city council passed a budget item for more
community service officers (police officers who deal with civil
disputes like those between a landlord and tenant), Mayor Nickels
ignored the legislation. And when the council tried to head off
Nickels’s heavy-handed nightlife licensing scheme by passing more
reasonable legislation, Nickels didn’t sign it.
Tension between the executive and legislative branches is nothing
new. But ignoring the legislative branch is new, and President
Bush has made it acceptable.
* * *
The constitutionally suspect standards set by the
Bush administration are appalling. A full catalogue of abuses isn’t
possible here, but in honor of the one-year mark until we get to vote
on his successor, here are some greatest hits.
Bush has flouted the separation of powers. The most blatant example
is Bush’s use of “signing statements” to ignore more than 750 laws
enacted by Congress. Bush has used signing statements to circumvent
everything from affirmative-action provisions to whistle-blower
protections and he quietly added a signing statement to the Patriot Act
that claimed the president could ignore provisions in the law that
required the administration to report on the FBI’s use of expanded
powers to search homes and seize documents.
Meanwhile, in the “first they came for the [blank]” department, the
Bush administration has attempted to rewrite the rules when it comes to
detaining people. Bush iced habeas corpus (the right to know why you’re
being held), used military tribunals instead of traditional courts, and
permitted torture. Sure, they’ve only done it to “enemy combatants” or
“material witnesses.” Or Muslims. So far. (A chilling 2005 report by
the Human Rights Watch documents how 42 of 70 “material witnesses,” all
Muslim, were wrongly held in federal prison, some up to six months,
without charges.)
The Bush administration’s defining achievement, however, has been
its war on the Fourth Amendment, the right to privacy. Using
warrantless wiretaps, the administration has monitored phone calls and
e-mails. Working with AT&T, BellSouth, and Verizon (yay Qwest!),
Bush’s National Security Agency has kept tabs on the phone activity of
millions of Americans. And, again, without court approval, the
administration monitored the banking activities of thousands of
Americans.
* * *
Bush’s failure to stand by the Constitution has
trickled down, emboldening others in positions of power. From regional
courts to companies to local governments, a disdain for citizens and
the legislative process has become commonplace.
There’s been a rash of overzealous behavior from corporate America
lately. Comcast is blocking internet users from sharing files. AT&T
censored a concert webcast when the songs got too political. And
Verizon attempted to block NARAL from sending text messages to its
supporters.
Companies aren’t the only ones following Bush’s lead. Regional
courts are ruling in startling ways. In early October, the Fourth
Amendment got the Bush treatment when the 8th Circuit issued a radical
ruling that police do not need to establish probable cause to do
thermal imaging of private property to check for drugs. More famously,
the District Court of Alaska (and eventually the Roberts Court) ruled
that high-school administrators can clamp down on off-campus student
speech.
Municipalities are in on the act, too: Hawkinsville, Georgia,
outlawed baggy pants; in Chesterfield County, Virginia, a teacher was
fired for selling controversial art during his off hours; in Santa
Barbara, California, a man was arrested for reading the names of Iraq
war dead over a megaphone.
The Constitution is also getting bruised in Washington State. Last
year, the state GOP infamously passed a party platform calling for a
repeal of the 14th Amendment—stating that children of illegal
immigrants should not be allowed to become United States citizens! And
again, our own Democratic mayor is behaving badly. In addition to
ignoring the legislative branch, his nightlife crackdown came with
raids that mainstream council member Jean Godden said raised serious
civil rights questions.
* * *
Voting Democratic in November 2008 isn’t going to
restore the U.S. Constitution. Bush’s assault at the top has fostered a
deep corrosion of Democracy at the local level. Fixing this is going to
require a root canal rather than a simple flossing.
So, vote for Clinton or whomever a year from now. But don’t expect
miracles. Bush has altered our Democracy in ways that will take years
to restore. And even more nerve-racking about counting on next
November? It’s over a year away. Who knows how much more constitutional
damage Bush will inflict in that time. 
