Cato Institute report on Clinton's sad constitutional record

[Declan McCullagh <declan@well.com>]

>Date: Thu, 10 Apr 1997 16:57:56 -0400
>To: fight-censorship-announce@vorlon.mit.edu
>From: Declan McCullagh <declan@well.com>
>Subject: Cato Institute report on Clinton's sad constitutional record
>Cc:
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>In yesterday's mail I found a copy of a Cato Institute policy analysis by
>Tim Lynch called "Dereliction of Duty: The Constitutional Record of
>President Clinton." It's damming. Lynch lays bare Clinton's two-faced,
>arrogant, downright hostile attitude towards civil liberties and, in a
>word, freedom.
>
>Lynch concludes: "If constitutional report cards were handed out to
>presidents, Bill Clinton would certainly receive an F--an appalling grade
>for any president--let alone a former professor of constitutional law."
>I've attached a few excerpts below.
>
>Also, in today's mail came a new book put out by Cato, "The Future of
>Money in the Information Age," edited by James Dorn. I haven't read it
>yet, but it looks promising.
>
>-Declan
>
>-----------------------------
>
>http://www.cato.org/pubs/pas/pa-271es.html
>
>DERELICTION OF DUTY
>The Constitutional Record of President Clinton
>
>by Timothy Lynch
>
>Timothy Lynch is assistant director of the Cato
>Institute's Center for Constitutional Studies.
>
>*********
>
>Executive Summary
>
>President Clinton recently put his hand on the Bible
>and swore an oath to "preserve, protect and defend the
>Constitution of the United States." He took the same
>oath in January 1993. As the president embarks on his
>second term in office, it is an appropriate time to
>review his record thus far to see how well he has
>defended our Constitution.
>
>Although President Clinton has expressed support for
>an "expansive" view of the Constitution and the Bill
>of Rights, he has actually weakened a number of
>fundamental guarantees, including those of free speech
>and the right to trial by jury and that against double
>jeopardy. He has also supported retroactive taxes, gun
>control, and warrantless searches and seizures. The
>president's legal team is constantly pushing for
>judicial rulings that will sanction expansions of
>federal power. The Clinton White House has, for
>example, supported the federalization of health care,
>crime fighting, environmental protection, and
>education. Clinton also claims constitutional
>authority to order military attacks against other
>countries whenever he deems it appropriate. President
>Clinton's record is, in a word, deplorable. If
>constitutional report cards were handed out to
>presidents, he would receive an F.
>
>It is to be hoped that President Clinton will resolve
>to be more conscientious about his constitutional
>responsibilities in his second term. But should his
>dereliction of duty continue, Congress and the Supreme
>Court should stand fast against any constitutional
>transgression. In the present climate, it is vitally
>important for all Americans to understand that the
>Constitution is incapable of enforcing itself. That
>task ultimately rests with the citizenry. If the
>American people demand adherence to the Constitution,
>government officials, including President Clinton,
>will respect the limitations that were wisely placed
>on their power.
>
>*********
>
>
>The Free Speech Clause
>
>The free speech clause of the First Amendment is,
>without a doubt, the most famous provision of the
>American Constitution. Its simple, yet profound,
>command provides: "Congress shall pass no law . . .
>abridging the freedom of speech." The underlying
>principle of the free speech clause is that "each
>person should decide for him or herself the ideas and
>beliefs deserving of expression, consideration, and
>adherence." [9] That principle has been recognized as
>"one of the preeminent rights of Western democratic
>theory, the touchstone of individual liberty." [10]
>The invocation of the free speech guarantee, however,
>is often controversial because it requires the
>government and the citizenry to tolerate the speech
>and writings of unpopular, crude, ignorant, and
>malicious people. Civil libertarians must often remind
>government officials (and others) that if the First
>Amendment only protected the expression of popular and
>agreeable ideas, it would be totally unnecessary since
>those ideas would never be threatened by our
>democratic form of government. Our society's
>commitment to free speech is tested when we encounter
>the expression of ideas that are disagreeable--or even
>offensive.
>
>One would think that President Clinton, a former
>professor of constitutional law, would have a deep
>appreciation for the principle of freedom of speech,
>but his official actions in office show just the
>opposite. The Clinton Justice Department has attempted
>to censor (a) the rights of peaceful protesters; (b)
>the views of priests and doctors; (c) radio,
>television, and the Internet; and (d) truthful
>advertisements for lawful products.
>
>[...]
>
>The Ex Post Facto Clause
>
>The Framers of the Constitution detested the idea of
>retroactive legislation. The Constitution contains two
>specific prohibitions against ex post facto laws:
>Article I, section 9, addresses Congress: "No . . . ex
>post facto Law shall be passed." Article I, section
>10, addresses state officials: "No State shall pass
>any ex post facto Law." The Constitution contains no
>exception to either prohibition. As Professor William
>Winslow Crosskey of the University of Chicago once
>observed, it is evident that ex post facto laws "were
>thoroughly disapproved by the framers of the
>Constitution and intended by them to be completely
>impossible under our system." [44]
>
>Not only has President Clinton failed to defend the
>prohibition of ex post facto laws; he encouraged the
>103rd Congress to violate the prohibition. In the
>summer of 1993 he urged Congress to levy a retroactive
>tax on the American people. Under the president's
>initial budget plan, income, corporate, gift, and
>estate taxes were to be increased retroactively to
>January 1, 1993--20 days before the president assumed
>office. Never before in American history had a tax
>been made retroactive to the time of a prior
>administration.
>
>[...]
>
>The Warrant Clause
>
>The warrant clause of the Fourth Amendment, specifying
>the conditions that must be met before officials may
>search a person's home or seize papers and effects,
>provides: "no [search] Warrants shall issue, but upon
>probable cause, supported by Oath or affirmation, and
>particularly describing the place to be searched, and
>the person or things to be seized." The warrant clause
>protects the citizenry from arbitrary searches by
>requiring law enforcement personnel to obtain judicial
>authorization before they demand entrance to any
>person's home. The Supreme Court described the
>constitutional importance of the warrant application
>process in McDonald v. United States (1948).
>
>The presence of a search warrant serves a high
>function. Absent some grave emergency, the Fourth
>Amendment has interposed a magistrate between the
>citizen and the police. This was done not to shield
>criminals nor to make the home a safe haven for
>illegal activities. It was done so that an objective
>mind might weigh the need to invade that privacy in
>order to enforce the law. The right of privacy was
>deemed too precious to entrust to the discretion of
>those whose job is the detection and the arrest of
>criminals. Power is a heady thing; and history shows
>that the police acting on their own cannot be trusted.
>And so the Constitution requires a magistrate to pass
>on the desires of the police before they violate the
>privacy of the home. [50]
>
>The Clinton administration has repeatedly attempted to
>play down the significance of the warrant clause. In
>fact, President Clinton has asserted the power to
>conduct warrantless searches, warrantless drug testing
>of public school students, and warrantless
>wiretapping.
>
>Warrantless "National Security" Searches
>
>The Clinton administration claims that it can bypass
>the warrant clause for "national security" purposes.
>In July 1994 Deputy Attorney General Jamie S. Gorelick
>told the House Select Committee on Intelligence that
>the president "has inherent authority to conduct
>warrantless searches for foreign intelligence
>purposes." [51] According to Gorelick, the president
>(or his attorney general) need only satisfy himself
>that an American is working in conjunction with a
>foreign power before a search can take place.
>
>[...]
>
>Constitutional Federalism
>
>President Clinton is the first president in American
>history to deny that the Constitution limits the
>powers of the federal government. The Clinton White
>House has sought to federalize health care, crime
>fighting, environmental protection, and education. It
>has also tried to thwart any effort to downsize
>federal agencies and programs. Although the Washington
>press corps has dutifully scrutinized the fledgling
>efforts of the 104th Congress to breathe life into the
>Tenth Amendment of the Constitution, which affirms
>that the federal government has only limited powers,
>the president's efforts to expand federal power have
>received scant attention from a Tenth Amendment
>perspective. By his official conduct as president,
>Clinton has made it clear that he believes there is no
>area of human activity that is beyond the
>redistributive or regulatory reach of the federal
>government and that the state governments essentially
>operate at the sufferance of the national government.
>Such a view contravenes the text, history, and
>structure of our Constitution.
>
>[...]
>
>Conclusion
>
>As his first term of office drew to a close, Bill
>Clinton proclaimed, "One of my highest goals as
>President has been . . . to protect and uphold the
>Constitution." [161] In light of the evidence set
>forth in this study, it seems obvious that that
>statement was simply a platitudinous throwaway line
>that was completely devoid of substance.
>
>Supporters of the Clinton White House can point with
>pride to a handful of presidential actions in defense
>of constitutional rights--such as the signing of the
>Religious Freedom Restoration Act and the Justice
>Department's lawsuit against the Virginia Military
>Institute on behalf of gender equality [162]--but
>those acts were exceptions to the rule. Indeed, some
>constitutionalists and civil liberties attorneys might
>very well claim that this study does not go far enough
>in its criticisms of the Clinton record. [163]
>Although this study is not an exhaustive account of
>every presidential action over the last four years, it
>does present overwhelming evidence that Clinton has
>been derelict in his duty to "protect and preserve"
>our Constitution. If constitutional report cards were
>handed out to presidents, Bill Clinton would certainly
>receive an F--an appalling grade for any
>president--let alone a former professor of
>constitutional law.
>
>Perhaps Clinton will resolve to be more conscientious
>about his constitutional responsibilities in his
>second term. One can only hope that he will. But
>should his dereliction of duty continue, Congress and
>the Supreme Court should stand fast against any
>constitutional transgression.
>
>All three branches of government--executive,
>legislative, and judicial--should strive to be more
>conscientious about meeting the responsibilities that
>have been assigned to them under the Constitution.
>Constitutional violations are frequently temporary,
>isolated events. The most serious constitutional
>violations occur when all three branches conspire to
>expand the bounds of government power. When that
>happens, it becomes very difficult to right the wrong.
>Precedents are extremely important. That is why any
>constitutional transgression by any branch is
>alarming.
>
>The American people should jealously guard their
>liberty and hold all government officials accountable
>when they neglect or disregard the Constitution. Its
>Framers were keenly aware that the ultimate source of
>the Constitution's authority is the consent of the
>people. If the American electorate demands adherence
>to the Bill of Rights and the other provisions of our
>Constitution, government officials will respect the
>constitutional limitations on their power. But, as
>Judge Learned Hand warned many years ago, "Liberty
>lies in the hearts of men and women; [if] it dies
>there, no constitution, no law, no court can save it."
>[164]
>
>###
>
>