A year ago, Slate magazine’s legal correspondent, Dahlia Lithwick, recounted this observation — from one of her bounteously sophisticated liberal readers — as a neat summary of the “doctrine” of a “living Constitution.” And a neat summary it is. How droll and obtuse that conservatives think the Constitution should remain anchored against the tides of change while those currents bring with them torrents of newfangled iPods and ever-changing gusts of news; one day about Brittany Spears, the next day Paris Hilton. How very horse-and-buggy to suggest that the Commerce Clause wouldn’t change with the latest in slattern chic and personal electronics.
Anyway, that bit stayed in my mind ever since, and I think of it whenever the Constitution comes up in the war on terror. Just last week was a case in point. Judge Anna Diggs Taylor issued a ruling that even legal scholars who like the outcome consider to be laughable in its reasoning. She held that the government’s Terrorist Surveillance Program is not only illegal but also unconstitutional. The program, if you recall, monitors phone calls and Internet activity among al-Qaida members and affiliates without a warrant. The executive branch holds that it has the right to do this under its authority to collect intelligence for national security purposes. These calls aren’t being monitored for criminal prosecutions but to “connect the dots” and prevent another 9/11.
It may turn out that the TSP is illegal, technically violating the Foreign Intelligence Surveillance Act of 1978, but we wouldn’t know that from Taylor’s decision. She cited almost none of the most relevant cases on the matter, and the upshot of her ruling is that even if Congress wanted to codify in law what the president has been doing under his own authority, it couldn’t because the founders never had any such thing in mind. “There are no hereditary Kings in America and no powers not created by the Constitution,” Taylor wrote, invoking the founders’ intent and betraying her own intent to issue as quotable an opinion as possible for the press.