ZGram - 4/14/2003 - "Scalia's Absolutely Wrong About Absolute
Rights"
irimland@zundelsite.org
irimland@zundelsite.org
Mon, 14 Apr 2003 18:38:58 -0700
ZGram - Where Truth is Destiny: Now more than ever!
April 13, 2003
Good Morning from the Zundelsite:
Another thought-provoking essay by Anthony Gregory, a public policy
research intern at The Independent Institute, a non-partisan public
policy organization based in Oakland, Calif.:
[START]
Scalia's Absolutely Wrong About Absolute Rights
By Anthony Gregory*
Speaking to an audience at Cleveland University, Supreme Court
Justice Antonin Scalia recently said that individual rights can and
will likely be curtailed in wartime. In explaining his position, he
said that "the Constitution just sets minimums" and that "most of the
rights that [Americans] enjoy go way beyond what the Constitution
requires." The Iraq war will probably mean that "[rights] protections
will be ratcheted right down to the constitutional minimum."
It is true that the Constitution sets minimums, but Scalia's
unspecified view of where those minimums reside is unsettling.
The Constitution's prescribed minimums of personal freedom emerge
from its enumerated maximums of government power. If Scalia were to
read the Bill of Rights properly, he would understand that the
freedoms Americans currently enjoy do not "go way beyond what the
Constitution requires." In the absence of any specific
constitutionally authorized government powers that can legally
interfere with these freedoms, everyday American liberties are
guaranteed under the umbrella of the ninth and tenth amendments,
which protect rights not specifically guaranteed in the Constitution
and reserve to the states and people all powers not granted to the
federal government.
Indeed, there are a number of rights mentioned in the Constitution
currently not respected in full because the government has acted
"beyond what the Constitution requires." Freedom of speech, the right
to bear arms, freedom from unreasonable search and seizure, and the
right to a jury trial have each suffered fundamental and severe
erosion over the years, and to this day.
That Scalia thinks the freedom we currently have is above and beyond
the Constitutional mandate is disturbing enough. His prediction that
those freedoms will decline in wartime to that mandate - wherever he
imagines it to be - is downright terrifying.
History shows us what happens when politicians "ratchet" American
freedoms "down to the [perceived] constitutional minimum."
During the War Between the States, Abraham Lincoln suppressed and
closed down over a hundred Union newspapers, implemented
conscription, deported political enemies, and suspended habeas
corpus, jailing thousands of dissenters without trial. The Supreme
Court objected, but Lincoln simply ignored them.
During World War I, Woodrow Wilson drafted 2.8 million Americans, the
German language was barred from public schools, and Congress passed a
number of nasty laws including the Sedition Act, which made simple
criticism of the U.S. government, its flag, its military uniforms, or
its allies a highly punishable offense.
The law was brutally enforced: socialist activist Eugene V. Debs went
to prison for ten years for an antiwar speech he made, and movie
producer Robert Goldstein was sentenced to ten years in prison for
his patriotic movie, Spirit of '76, about the American Revolution, in
which he characterized Britain - U.S. ally in World War I, American
enemy in the Revolution - in a bad light. The Supreme Court upheld
these absurd violations of free speech, explaining that war made such
extreme measures necessary.
During World War II, the draft returned to take hold of ten million
young men. This time, the Supreme Court not only upheld the draft but
argued that pretty much anything else the government wanted to do
must also be constitutional - because such exercises of power were
clearly more benign than the authority to force Americans into
combat. American civil liberties hit an absolute low point in World
War II when Franklin Roosevelt signed Executive Order 9066, which
forced 110,000 Japanese Americans into internment camps - an order
the court also went along with.
Incidentally, conservatives who consider such encroachments on civil
liberties to be justified in times of war should look at where their
pet nuisances - high taxes and big government - originated. The War
Between the States saw the beginning of fiat money and the income
tax. World War I brought massive nationalization of industries and
maximum income tax rates of 77 percent. World War II meant even more
central planning, maximum income tax rates of 94 percent and the
birth of Income Tax withholding.
The Constitution was established for the exact purpose of restricting
the government from interfering with absolute rights, especially in
the most precarious of times for liberty, such as wartime.
One must wonder whether Scalia could justify all the above mentioned
historical examples of erosions of liberty as fitting within the
minimums of freedom set in the Constitution, as he reads it. If so,
and if any of the new and increasingly freedom-threatening War on
Terrorism measures goes to the Supreme Court, hopefully Scalia's
eight robed colleagues will have more of a strict constructionist
interpretation and understanding of the Constitution.
=====
[END]