by Matthew Stollak on Thursday, July 30, 2009

In the morning, I usually do a morning surf of the blogosphere to read the latest missives that have been published. One of my regular stops is Glenn Greenwald's column at As usual, he has an excellent post on journalism and the Constitution. Here is an excerpt from today's column:

By the design of the Founders, most American political issues are driven by the vicissitudes of political realities, shaped by practicalities and resolved by horse-trading compromises among competing factions. But not all political questions were to be subject to that process. Some were intended to be immunized from those influences. Those were called "principles," or "rights," or "guarantees" -- and what distinguishes them from garden-variety political disputes is precisely that they were intended to be both absolute and adhered to regardless of what Massing calls "the practical considerations policymakers must contend with."

We don't have to guess what those principles are. The Founders created documents -- principally the Constitution -- which had as their purpose enumerating the principles that were to be immunized from such "practical considerations." All one has to do in order to understand their supreme status is to understand the core principle of Constitutional guarantees: no acts of Government can conflict with these principles or violate them for any reason. And all one has to do to appreciate their absolute, unyielding essence is to read how they're written: The President "shall take Care that the Laws be faithfully executed." "[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." "Congress shall make no law . . . abridging the freedom of speech." "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." "No person shall be . . . deprived of life, liberty, or property, without due process of law." Even policies which enjoy majoritarian support and ample "practical" justification will be invalid -- nullified -- if they violate those guarantees.

He goes on to write:

Those principles are absolute and unyielding by their nature. Garden-variety political questions -- what should be the highest tax rate? what kind of health care policy should the government adopt? to what extent should the government regulate private industry? -- are ones intended to be driven by "the practical considerations policymakers must contend with." But questions about our basic liberties and core premises of our government -- presidential adherence to the law, providing due process before sticking people in cages, spying on Americans only with probable cause search warrants, treating all citizens including high political officials equally under the law -- are supposed to be immune from such "practical" and ephemeral influences. Those principles, by definition, prevail in undiluted form regardless of public opinion and regardless of the "practical" needs of political officials. That should not be controversial; that is the central republican premise for how our political system was designed.
With that in mind, what are the core premises that HR must follow versus the practical considerations must follow? What are the "MUSTS?"

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