As large as it looms on our current national conscience, terrorism still a relatively recent threat. The longer rhetorical thread coming from conservative quarters is the threat of “activist judges” hell-bent on robbing our great nation of freedom, parenthood, tasty home recipes and any other garnish sacred to the traditions of our great nation.
In fact, reading conservative publications such as National Review we can conclude that our nation’s courts, and even the Supreme Court, have no business hearing cases at all.
Sample, if you will the ludicrous June 30 editorial lashing William F. Buckley’s publication gave the Supreme Court in the fallout of Hamdan v. Rumsfeld, the 5-3 ruling that President Bush’s Gitmo policies violated the Geneva Conventions and lacked necessary authorization from Congress. The Supreme Court “had no business deciding this case at all,” the editorial board huffed and “lacked the institutional competence” necessary to judge such matters “which the Framers committed singularly to the chief executive.” Who is judge, jury and executioner? King George, thank you very much. Checks and balances be damned!
Who knows what Sen. Orrin Hatch thinks of the indefinite detention of 450 Gitmo prisoners who may or may not be guilty? He said two years ago he was troubled “that critical military decisions could be second-guessed by attorneys in a courtroom.” In our glorious war on terror it’s right-wing blasphemy to consider that anyone within our sights might be innocent or undeserving of wrath.
No, unquestioned innocence is something reserved exclusively for our flag, which in 1989 the Supreme Court failed to protect. Anyone unwilling to protect Old Glory is guilty, guilty and guilty. So year after year after year'1995, 1997, 1999, 2001, 2003, 2005 and now 2006, to be exact'he’s attempted to maneuver his besotted flag desecration amendment through either the Senate or Congress. “It’s a message to activist judges that enough is enough,” a recent press release out of his office fumes. “This amendment is a way for Congress to stand up and say to the Supreme Court we won’t sit idly by when you usurp the power of the people.
Hatch may or may not know how many Iraqi civilians have lost their lives in our war, or how many detainees sit in Gitmo. But he knows exactly how many U.S. flags have been burned, ripped or defaced since 2003. In a recent Senate speech Hatch revealed that shocking number to be a round 17. Such scrupulous documentation should be expected from a man who’s recorded nine CDs worth of religious and patriotic music. The fact that Hatch cares so deeply about patent law'recall his threat to blow up computers used to illegally download music'adds dimension to a personality that takes so much offense at the violation of symbols and property. This year Hatch’s dream to amend our First Amendment freedoms nearly came true, if not for the courage of one lone Senator who broke the two-thirds majority needed to send this execrable piece of legislation to state Legislatures nationwide for inevitable ratification.
That one U.S. Senator could, of course, have been named as any one of the 34 courageous enough to refuse granting the state power to punish speech and behavior deemed unpatriotic. But because Sen. Bennett hails from the same state as rabid nationalist Hatch, his office undoubtedly received some very nasty phone calls the day the flag-desecration amendment bit its deserved dust. Thinking people everywhere in Utah should find that unfair. If Bennett deserves anything for his principled stand, it’s unreserved praise.
As incredible as it sounds, politicians the likes of Hatch think nothing of turning our nation back to a time when activists like Eugene V. Debs were sentenced to 10 years in prison under the 1917 Espionage Act for opposing WWI. If you can criminalize speech you can criminalize ideas, and you can make criminal those you disagree with. Sen. Bennett has made it clear he doesn’t like the flag desecrated, either. But he’s not about to alter the most important political document our flag symbolizes. Beside, taking the grand trouble to amend the U.S. Constitution gives flag desecrators everywhere'all 17 of them since 2003'a status they just don’t deserve.
“We seem to stimulate flag desecration when we have the debate on amending the Constitution to prevent it,” Bennett observed in a recent press release explaining his position. “So, for that reason, I have consistently opposed a constitutional amendment on desecration of the flag.”
That’s a rather cheeky way of saying that the 17 cases of flag desecration Hatch complained about on the Senate floor really come down to all the attention he gives his pitiful proposal of a constitutional amendment whenever he pitches it. Or not. We can let Bennett speak to that.
Meanwhile, let’s review Alexander Hamilton’s immortal words in the Federalist Papers about the vital importance of our nation’s “courts of justice,” i.e., “the bulwarks of a limited Constitution against legislative encroachments.”
“[The] independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”
So never mind all this talk of “activist judges.” We’re better off asking hard questions about “the arts of designing men.” And I’m not talking about Bennett.