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: Bcc: X-Attachments:

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

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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.

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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.

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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]

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