ZGram - 4/14/2003 - "Scalia's Absolutely Wrong About Absolute Rights"

[irimland@zundelsite.org]

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.:

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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.

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