Saving constitutionalism from Bush
News broke this week of the National Security Agency’s seizure of essentially every Americans’ calling history that they could get their hands on. I feel shocked and saddened, but not particularly surprised, given the track records of the principles involved. Interestingly, the press coverage has focused on the scope of the program (some have defended that they aren’t listening to the content of the conversations) or its effectiveness (statistically, a database of all Americans’ phone call seems likely to generate so many false positives as to be useless for law enforcement). To me, this focus seems to miss the point. The Administration has clearly intentionally violated the spirit, if not the letter, of the FISA law. It has clearly intentionally violated the spirit, if not the letter, of the 4th Amendment. What is dangerous about the Bush Administration then is not this or that action and whether it is effective, but their direct assault on the principle of constitutionalism. I mean this in the broad sense, where constitutionalism is simply the limitation of government by a set of publicly-defined, transparent laws. The reason every English-speaking schoolchild studies the Magna Carta is that it was one of the first documents of constitutionalism; the actual specifics of the rules in the Magna Carta are quite unimportant to modern men.
Whatever your political party, you have to admit that constitutionalism is central to what made the United States the great democracy that it is: we are a country of laws, not of men. What does it mean then, that some of our men of letters argue that it doesn’t matter that the president knowingly and willingly violated the law, because it was effective? When any columnist or reporter makes this argument, they are becoming, in the terminology of Milan Kundera, “the ally of their own gravediggers.” If there is no constitutionalism, if there are no rules within which democracy functions, then there are no political writers, only polemicists. Honest political writing is an effort to influence public opinion so as to democratically shape policy. If there no laws for the powerful, then writers become little more than Mark Anthony to a Caesar: skilled orators, perhaps, but not free men.
