• January 6, 2011
    Debate over the meaning and reach of the U.S. Constitution is flourishing, partly due to emergence of lawmakers aligned with the Tea Party, which claims to have cornered the market on constitutional scholarship.

    In order to navigate the debate, The New York Times offers "an annotated guide to the clauses most revered, and disputed, by advocates on either side of the political spectrum," and Georgetown Law Center's David Cole provides a decidedly more cutting look at the situation by revealing "for the first time" the "Conservative Constitution of the United States of Real America," for The Washington Post.

    The Times annotated guide touching on those "revered" and "disputed" portions of the Constitution includes sections on the Commerce Clause, the Reconstruction Amendments, the Necessary and Proper Clause and Executive Power. According to The Times, the Commerce Clause is "the biggest source of complaint for many Tea Party activists, which explains the emphasis on it during the nomination hearings for Elena Kagan, the court's newest Justices. The strictest of Tea Party interpretations argues that this clause was intended to govern only interstate transportation."

    Cole, a leading constitutional scholar and professor of law at Georgetown University, notes today's reading of a version of the Constitution on the House floor as a "first step toward fulfilling the tea party's goal of ‘restoring' our nation's founding document," in a column for The Post, in which he also reveals, with tongue firmly planted in cheek, a conservative constitution for "Real America."

    Cole's preamble is especially entertaining:

    We, the Real Americans, in order to form a more God-Fearing Union, establish Justice as we see it, Defeat Health-Care Reform, and Preserve and Protect our Property, our Guns and our Right Not to Pay Taxes, do ordain and establish this Conservative Constitution for the United States of Real America.

  • July 29, 2010
    Inside Out
    Barry Eisler

    By Barry Eisler, an award-winning author of bestselling thrillers. Eisler spent three years in a covert position with the CIA's Directorate of Operations and has worked as a technology lawyer. Eisler also blogs on torture, civil liberties and the rule of law.
    As a thriller writer, blogger, and former CIA officer who continues to adhere to his oath to protect and defend the Constitution, I've never been so satisfied with one of my novels as I am with Inside Out.

    I'm a big believer in the power of fiction to promote ideology, and in fact addressed this subject recently in an essay for NPR on George Orwell's Nineteen-Eighty-Four. I'm appalled at how effectively the right has been using fiction to promote torture, and conceived of Inside Out in part as a way to fire back: a means of depicting not a cartoon fantasy, but rather the true causes and consequences of torture, consequences that include worsening erosion of our values, increased damage to national security, and the continued degradation of the Constitution itself.

    Of course, Inside Out is filled with great characters, edge-of-your-seat action, and steamy sex - it's a thriller, after all. But what sets it apart from most works of the genre is the timeliness and relevance of the story. The ninety-two interrogation videos the CIA confessed last year to destroying, and which form the foundation for the book's plot, are back in the news now, as independent prosecutor John Durham concludes his two-year obstruction of justice investigation. And the other subjects at the heart of Inside Out - torture, ghost detainees, renditions, the real nature of America's Establishment - continue to be the most profound and controversial political issues of the day.

  • June 16, 2010
    Sen. Al Franken will kick off the 2010 ACS National Convention on Thursday, June 17 with a speech offering a "real-world perspective on what we lose when we let conservatives control our constitutional discourse."

    During the Senate Judiciary Committee's confirmation hearings for Supreme Court Justice Sonia Sotomayor, Sen. Franken tackled an element of conservatives' constitutional discourse that tags progressive judges as engaging in so-called judicial activism. Franken pointed to the Supreme Court's conservative wing as evidence that it is a leading force of activism from the bench.

    "The current Supreme Court has consistently struck down and questioned longstanding protections for Americans," Franken said during Sotomayor's confirmation hearings. "And I'm talking about individual rights, individual protections, individual liberties. This Supreme Court came close to overturning critical portions of the voting rights act. The Court did this despite the express powers that Congress has granted under the 15th amendment to enact this law." Franken went on to note recent Supreme Court rulings that have made it more difficult for people file lawsuits. "This is judicial activism," Frank said. "This is a Court that is willing to reverse itself to limit the rights of individual Americans. This is a Court that is more than willing to overturn Congress to achieve its own agenda of what is right."

    In a press statement on the Sotomayor nomination, Franken continued that the high court's rulings have also had a detrimental impact on "the rights of Americans as employees, as small business owners, and as investors. And they've done this by overturning long-standing precedents."

    Franken is the featured speaker at the Convention's Gala Dinner starting at 7 p.m. in the Grand Ballroom of the Renaissance Mayflower Hotel in Washington, D.C. The Convention runs June 17 - 19. Visit the ACS Web site here, for the full Convention schedule and to register.

  • May 7, 2010
    Joseph J. Ellis, renowned historian, offers a tough critique of originalism, the method of constitutional interpretation favored by some conservative jurists.

    Ellis, who won a Pulitzer for his book Founding Fathers, writes in a piece for The Washington Post that during the forthcoming confirmation hearings for a new justice to fill the seat of Justice John Paul Stevens, the major weapon used against the nominee will likely be the "claim that Supreme Court justices should interpret the Constitution as it was written, not impose their political or personal convictions on the semi-sacred text. Woe to the nominee who has left a paper trail that deviates from the original intentions of the Founders, or what the hostile Senate interrogator defines those intentions to be."

    Ellis continues:

    The doctrine of original intent rests on a set of implicit assumptions about the framers as a breed apart, momentarily allowed access to a set of timeless and transcendent truths. You don't have to believe that tongues of fire appeared over their heads during the debates. But the doctrine requires you to believe that the ‘miracle at Philadelphia' was a uniquely omniscient occasion when 55 mere mortals were permitted a glimpse of the eternal verities and then embalmed their insights in the document.

    Any professional historian proposing such an interpretation today would be laughed off the stage. That four sitting justices on the Supreme Court - Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito - claim to believe it, or some version of it, is truly strange. We might call it the Immaculate Conception theory of jurisprudence.

    For other methods of constitutional interpretation, see the book Keeping Faith with the Constitution, which was published last spring by ACS.

  • April 14, 2010

    In an op-ed for The New York Times, constitutional scholar Geoffrey R. Stone, urges a "frank discussion ... on the proper role of judges in our constitutional system." Stone, a professor of law at the University of Chicago Law School and member of the ACS Board of Directors, says Chief Justice John Roberts' analogy of a judge as baseball umpire is "absurd."

    Stone writes:

    Rulings by conservative justices in the past decade make it perfectly clear that they do not "apply the law" in a neutral and detached manner. Consider, for example, their decisions holding that corporations have the same right of free speech as individuals, that commercial advertising receives robust protection under the First Amendment, that the Second Amendment prohibits the regulation of guns, that affirmative action is unconstitutional, that the equal protection clause mandated the election of George W. Bush and that the Boy Scouts have a First Amendment right to exclude gay scoutmasters.

    Whatever one thinks of these decisions, it should be apparent that conservative judges do not disinterestedly call balls and strikes. Rather, fueled by their own political and ideological convictions, they make value judgments, often in an aggressively activist manner that goes well beyond anything the framers themselves envisioned. There is nothing simple, neutral, objective or restrained about such decisions. For too long, conservatives have set the terms of the debate about judges, and they have done so in a highly misleading way. Americans should see conservative constitutional jurisprudence for what it really is. And liberals must stand up for their vision of the judiciary.