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by Walter Brasch
Sarah Palin stood before an audience of 600 at the first Tea Party convention and in her twinkly home-spun rhetoric, declared we don't need a professor of law but a commander-in-chief. As expected, she received roaring applause. And, as expected, she was wrong.
After Dick Cheney and George W. Bush, aided by a compliant Congress and a nation largely afraid to stand up for their rights, abused the Constitution for almost eight years, what the United States needs is a leader who understands constitutional law and who is unafraid of making sure all Americans understand that the fabric that became America should not be torn apart for political convenience.
Dick Cheney and George W. Bush established policies which violated:
- The First Amendment (freedom of religion, speech, press, and assembly, and the right to petition the government for a redress of grievances)
- The Fourth Amendment (freedom from unreasonable searches)
- The Fifth Amendment (right of due process and to protect against self-incrimination)
- The Sixth Amendment (due process, the right to counsel, a speedy trial, and the right to a fair and public trial by an impartial jury)
- The Eighth Amendment (reasonable bail and freedom from cruel and unusual punishment), and
- The Fourteenth Amendment (equal protection guarantee for both citizens and non-citizens)
BushCheney Administration actions also violated provisions of Article I, Section 9 of the Constitutionwhich guarantees the right to petition the courts to issue a writ of habeas corpusto require the government to produce a prisoner or suspect in order to determine the legality of the detention. Only Congressmay order a suspension of habeas corpus, and then only in "Cases of Rebellion or Invasion." Congressdid not suspend this right; nothing during or subsequent to the 9/11attack indicated either a rebellion or invasion under terms of the Constitution.
It wasn't just liberals who argued about Constitutional violations. Many leading conservatives argued that the BushCheney Administration overreached in its lame attempt to "keep America safe." Among those conservatives who objected were Bob Barr, Grover Norquist, Alan Caruba, and William F. Buckley, the founder of modern conservative thought. Also objecting to the wide-reaching policies of the BushCheney Administration were federal courts, including the Supreme Court of the United States, which leans to the right.
In Hamdi v. Rumsfeld (2004), Justice Sandra Day O'Connor, who had been nominated for the Court by Ronald Reagan, was forceful in her majority opinion, which attacked BushCheney Administration policies. According to O'Connor:
It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. . . . (The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action.) . . . (It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties, which makes the defense of the Nation worthwhile.)
A large population of misinformed citizens--including leading politicians, pundits, and blowhards--claim even if everything else was true about protecting rights during times of war, the Constitution protects only American citizens and not foreigners. The Supreme Court has several times ruled otherwise. In 1886, the Supreme Court, in its Yick Wo v. Hopkins decision, reaffirmed the principle that the Constitution protects all persons, even foreigners, in U.S. jurisdiction. More than a century later, in Boumediene v. Bush (2008), the Supreme Court ruled that the right of habeas corpus applies to all persons, even terrorists confined in Guantanamo Bay. Not one of the nine justices, or even the BushCheney Administration itself, disagreed with that principle. The only dissent was that such prisoners were on foreign soil and outside the jurisdiction of the Constitution; the Supreme Court ruled that the Guantanamo Bay Naval Base was on U.S., not Cuban, soil.
And now in an interesting twist of logic come the Teabaggers, who continue to claim that not only doesn't the Constitution apply to foreigners but that they want to impeach President Obama because he violated Constitutional rights. Alas, they can't provide specific instances that will hold up in any federal court. But, like much of what the Tea Party zealots say, it makes good rhetoric, and the mainstream media, often without challenge, publish and air their views to a mass audience.
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