The founding fathers were great statesmen, not flawless prophets. Their hindsight was reliable enough, going all the way back to Athenian democracy, but their ability to anticipate the future wasn't perfect. (Whose is?)
Consider Federalist Paper No. 57, which is often attributed to dear old, theoretical old James Madison. In it, he assures citizens that Congress would never abuse its authority under this proposed new Constitution because its members "can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society."
Good theory. Practice is something else. Even the founders, it seems, nodded on occasion. James Madison, if it was he rather than Alexander Hamilton who wrote No. 57, was confident that Congress would make no laws giving its members special privileges, but he failed to foresee how its members might interpret the law, including the Constitution itself, to make a privileged exception for themselves.
Consider the current legal case, political controversy and sizzling-hot potato that might be styled Congress versus Justice.
It seems the Department of Justice duly obtained a warrant from a federal judge allowing the FBI to search for specific documents in the congressional offices of the Hon. William Jefferson, U.S. representative and suspicious character from the Great State of Louisiana. And search the FBI did.
Whereupon the equally Hon. Dennis Hastert and indignant company in the House declared a constitutional crisis. For this wasn't just an ordinary suspect but . . . a congressman!
Quick, call the lawyers, the professors, the constitutional gurus and all professional pettifoggers. Republicans and Democrats in the House rose as one to defend their suspect colleague, who had already ignored one subpoena in his valiant effort to resist another.
Who says there is no honor among congressmen? There's nothing like a challenge to congressional privilege to revive bipartisanship.
After some $90,000 in literally cold cash had been found in Rep. Jefferson's freezer at home, the feds got a search warrant and went through his office for what an informant had told them was evidence of a bribe. After all, why is a congressman's office different from all other offices subject to a proper search warrant?
Because, the FBI's critics point out, Article I, Section VI of the Constitution declares that members of Congress shall not be questioned "for any Speech or Debate in either House . . . ."
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