Saturday, October 4, 2008

Was Nixon more of a Constitutionalist than Bush 43?

In a comment to a Dave Winer post (and bearing a subsequent Dave Winer post in mind), I made the following statement (among others):

I'd like to highlight one clear difference between the Nixon and Bush 43 administrations. When Nixon and his people violated conservative principles by trampling on the Constitution, they usually hid their actions. Bush's Constitutional violations are committed in broad daylight.

Here's what Robert Rouse said, after noting the anti-Constitutional actions of former Presidents John Adams, Abraham Lincoln, and Franklin Roosevelt. (Incidentally, Rouse did not name Andrew Johnson, since the law used to try him was itself declared unconstitutional, nor did Rouse name our later 20th century "impeachable offense" Presidents, Nixon and Clinton.). Anyway, back to Rouse's number one anti-Constitutionalist:

But at no point in history has a president been so staunchly anti-Constitution than George Walker Bush. Perhaps he had his fingers crossed when he took the oath of office.

At one point, when reminded that his actions were in violation of the Constitution, Bush reportedly said, "It's nothing but a God damned piece of paper." Whether he actually said that or not is still disputed, but his actions show that this is probably how he felt.

Rouse names several actions of Bush 43:

I don't believe there has ever been an administration so ready and willing to tear down the philosophical barrier between church and state. From respecting the church doctrine on abortion and homosexuality to teaching creationism (let's be realistic, Intelligent Design is just a new term coined for creationism) in schools at the exclusion of evolutionary science.

In my view, while I agree that Congress should not establish a religion, it should also not prohibit the free exercise thereof. I've personally advocated that churches refuse the government-imposed tax exemption, which in my view is a device intended to bribe the church on speaking out freely.

Speaking of freedom of speech...

Freedom of speech? Let's see, if you dared to speak out against Bush (especially in the months following 9/11) you were branded as unpatriotic at best and a seditionist or traitor at worst.

There is a difference between actions of the public and official actions of the government. It's one thing for Rush Limbaugh to call you a traitor, but it's another thing for DHS to put you on a no-fly list for speaking your views.

Freedom of the Press? The administration still will not allow main stream news coverage of the return of dead soldiers from Iraq. They have attempted to talk several news organizations out of releasing some stories (i.e.: NY Times and the wiretap story) while pushing propaganda or their own agenda onto FOX or other news outlets (Robert Novak and the Valerie Plame story).

I'll give them this one, as long as people acknowledge that Fox, CNN, and Al-Jazeera all have the right of free speech themselves.

Rouse then moved from Amendment I to Amendment IV:

The Patriot Act anyone? In addition, Bush authorization of the use of illegal wiretaps easily violates the fourth amendment. And it continues to this day unabated. The telecom giants have been giving detailed reports of our phone calls and emails to the government without a warrant or the right to do so. Now, not only have they been granted immunity from law suits, they also have implied consent to continue the actions.

This is one of Bush's biggest sins from a conservative perspective.

On to Amendment VI:

There are some American citizens who are being held without trial or defense. And our inhumane treatment of so called enemy combatants has been a huge wart on our national esteem.

And this is another of Bush's biggest sins.

Or so I think. But not everyone agrees. Anthony Gregory claims that Bush's Constitutional violations are NOT unprecedented:

Although President Bush and Attorney General John Ashcroft are indeed stretching the envelope in many ways, to call their policies unprecedented is to ignore history. For every civil liberty currently being violated and for every amendment in the Bill of Rights currently being ignored, there is a long and rich legacy of similar abuse.

More violations of the Constitution probably occurred during Abraham Lincoln’s four years as president than during any other cohesively defined era in American history....

During the Progressive Era, the federal government expanded in numerous ways, regulating trade, adopting an income tax, creating the Federal Reserve, and imposing new standards on industry for the production of foods and pharmaceuticals. Almost all these new federal programs and agencies were violations of the Tenth Amendment, which precludes the federal government from exercising any powers not explicitly delegated to it by the Constitution....

The precedent for total disregard of the Tenth Amendment picked up steam during the New Deal, during which nothing in the economic sphere was considered off limits....

After World War II, the government began to run out of excuses to infringe on the most agreed upon fundamental rights expressed in the Constitution’s first ten amendments. The Korean War and the Vietnam War each had its own version of conscription and its own government surveillance abuses. The Cold War allowed for a hybrid peacetime/wartime regime of civil liberties violations. But it was the War on Drugs that drove the last nails into the coffin in which the tattered Bill of Rights now lies.

In a couple of decades the War on Drugs managed to make a mockery of nearly the entire Constitution. The War on Drugs has seen the emergence of mandatory minimum sentences, in violation of the Eighth Amendment. It has created drug courts, in lieu of anything acceptable under the Sixth Amendment. It has led to drug testing in schools, in disregard of the Fifth Amendment. It has led to no-knock warrants and to increasingly lowered standards of probable cause for search and seizure, in open contempt of the Fourth Amendment. It has been used to justify stronger laws against guns, in violation of the Second Amendment, and restrictions on commercial speech, in violation of the First.

But back to the Nixon-Bush comparison, and who better to compare the two than Morton Halperin?

The Nixon administration bugged my home phone – without a warrant – beginning in 1973, when I was on the staff of the National Security Council, and kept the wiretap on for 21 months. Why? My boss, national security advisor Henry Kissinger, and FBI Director J. Edgar Hoover believed that I might have leaked some information to the New York Times. When I left the government a few months later and went to work on Edmund Muskie’s presidential campaign (and began actively working to end the war in Vietnam), the FBI continued to listen in and made periodic reports on everything it heard to President Nixon and his closest associates in the White House.

Recent reports that the Bush administration is monitoring political opponents who belong to antiwar groups also sounded familiar to me....

Much of what the Nixon administration did was clearly illegal and in violation of the Constitution. Nixon and his colleagues seemed to understand that and worked hard to keep their activities secret. On the occasions when their actions became public, administration officials tried to blame others for them....

But even though Nixon’s specific actions might have been more obviously illegal and more “corrupt” (in the sense that they were designed to advance his own career over his rivals), President Bush’s claim of nearly limitless power – including the ability to engage in a range of activities that pose a fundamental threat to the constitutional order and to our civil liberties – overshadows all comparisons.

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