The Border Fence and the Constitution

Today, the Times ran this story by Adam Liptak about how the government has ridden roughshod across the Constitution to build the border fence. To their credit, the Times has run a pretty long series of stories now on the awfulness of this idea.

Liptak shows how the government, and especially Michael Chertoff, has basically used the Constitution as toilet paper. By waiving whatever laws get in the way of the fence, Chertoff and Bush are setting the dangerous precedent that the rule of law is irrelevant whenever the government chooses.

In their lawsuit challenging Chertoff waiving environmental law, the Sierra Club and Defenders of Wildlife said

“It is only happenchance that the secretary’s waiver in this case involved laws protecting the environment and historic resources,” the groups told Judge Ellen Segal Huvelle of Federal District Court in Washington. “He could equally have waived the requirements of the Fair Labor Relations Act to halt a strike, or the provisions of the Occupational Safety and Health Act in order to force workers to endure unsafe working conditions.”

Precisely. This is a slippery slope. Guantanamo was the first step, but many Americans ignored it because it was far away and the victims were terrorists or something. But this administration, as seen in the work of John Yoo and others, believes that they can ignore the Constitution whenever they want and they intend on doing so to build this pointless wall.

Of course, this is hardly the first time that Bush has ignored the Constitution. Moreover, it's a reminder of the Constitution's fragility. Any study of U.S. history, particularly racial or labor history, shows that we have a long history of upholding the Constitution only when we find it convenient. Think of Andrew Jackson ignoring the Supreme Court over Cherokee removal. Think of Rutherford Hayes and Grover Cleveland calling out federal troops to suppress strikes. Think of Woodrow Wilson and the first Red Scare. And of course, there's Richard Nixon.

Even presidents who I respect have often not respected the Constitution. Lincoln's suspension of habeus corpus during the Civil War was unfortunate, though perhaps necessary given the situation. And Franklin Roosevelt's issue of Executive Order 8803, creating the Japanese concentration camps, is a sad mark on U.S. history.

This doesn't even get into how local governments, law enforcement, and even the Supreme Court has ignored the Constitution when they don't agree with it. The long-term violation of civil rights of African-Americans is the most notorious example, but the suppression of labor struggles or just people who local communities didn't like has happened throughout U.S. history. Maybe the worst example is the Gilded Age Supreme Court. In 1896, not only did the Court rule in Plessy v. Ferguson, which for all intent and purpose flushed the 14th Amendment down the toilet, it also ruled in Ward v. Race Horse that legal precedents concerning Native American rights to the land were "wholly immaterial" because national glory now demanding white domination of the land. This is nothing more than Supreme Court members codifying their own prejudice.

What is different today is a wider spread belief in civil rights and the sanctity of the Constitution. So there are powerful groups suing the federal government over their disturbing unconstitutionality. But still, most Americans may not care, particularly when the move is so obviously to maintain the nation's whiteness in the guise of anti-terrorism. While the Constitution should be the law in this nation, it has usually operated as an ideal that must be constantly fought for. Too often those on the side of law and civil rights have lost. I'm hardly more optimistic about the outcome of this situation.