Dave Gallagher

Necessary Evil

More About: Bill of Rights

Sam-I-am-Alito & me

Alright, so I swore I would not watch the Alito confirmation hearings. I have heard Ted Kennedy grandstand and Joe Biden pontificate before. I think we all know Alito will be confirmed, so why spend my precious time getting alternately irritated with the Senators and the Judge.

Well, you know what happened. I watched a little of the replay on CSPAN this weekend.

So what irritated me most? Biden listening to himself talk? The Repubs kissing Alito's ring? Kennedy and Specter fighting like 4 year olds?

Kennedy: I sent you a letter

Specter: Just because you sent it doesn't mean I got it

Kennedy: I know you are but what am I

Specter: (Covers ears with hands) I can't hear you, I can't hear you

... and on it went.

On one hand I thought ... ”this silliness is on our Nickel". Reconsidering, I thought “perhaps, but while they are held up flap jawing for the CSPAN cameras with Judge Sam-I-am-Alito, they are not ruining our country, our money and eroding our freedom”. Not at that precise moment anyway. “So they are doing far less damage than they otherwise could be”. Satisfied, that Sam-I-am-Alito is keeping the Senators occupied for a while in a safe place so they can't break stuff and steal my money to pay for it, I continued watching.

We have come to expect these things so they are not entirely troublesome. What really caught my attention was the response that came to some soft questions from Bob Coburn. But first we have to check in with Darlin' Arlen the rogue Republican chairman.

SPECTER: You made a speech at Pepperdine where you said, in commenting about the decision of the Supreme Court in ex parte Milligan, that, quote, "the Constitution applies even in an extreme emergency." The government made a, quote, "broad and unwise argument that the Bill of Rights simply don't apply during wartime."

Do you stand by that statement?

ALITO: I certainly do, Senator.

The Bill of Rights applies at all times. And it's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that's when there's the greatest temptation to depart from them.

Ding! Correct, +1 point for the Judge. Good so far.

Steering clear, Judge Alito, of asking you how you would decide a specific case, I think it is very important to find out your jurisprudential approach in interpreting whether the September 14th, 2001 congressional resolution authorizing the use of force constituted congressional authorization for the National Security Agency to engage in electronic surveillance where one party to the conversation was in the United States.

Heeeyyy nice one Arlen ... good question. Who says all Republicans are Nazis? Now Specter goes on to lay several related questions out.

First, in interpreting whether Congress intended to amend FISA by that resolution, would it be relevant that Attorney General Gonzales said, we were advised that, quote, "That was not something we could likely get," close quote?

Second, if Congress had intended to amend FISA by the resolution, wouldn't Congress have specifically said so, as Congress did in passing the Patriot Act, giving the executive greater flexibility in using roving wiretaps?

Third, in interpreting statutory construction on whether Congress intended to amend FISA by the resolution, what would the relevance be of rules of statutory construction that repeal or change by implication that changes by, or makes a repeal, by implication or disfavor and specific statutory language trumps more general pronouncements?

How would you weigh and evaluate the president's war powers under Article II to engage in electronic surveillance with the warrant required by congressional authority under Article I in legislating under the Foreign Intelligence Surveillance Act?

And let me start with the with the broader principles. In approaching an issue as to whether the president would have Article II powers, inherent constitutional authority to conduct electronic surveillance without a wiretap (sic) when you have the Foreign Intelligence Surveillance Act on the books making that the exclusive means, what factors would you weigh in that format?

That's a lot to digest, but as I understand the questions they go sort of like this:

1.When Congress says no spying without a warrant do they really mean no spying. And, when Gonzo said the white house didn't ask Congress for permission to spy without a warrant because they were afraid the answer would have been “NO”, isn't it pretty clear that “no spying” meant no spying?

2.Doesn't no mean no?

3.Are there certain ways to interpret subsequent laws to make “no spying” mean something other than “no spying” even though the subsequent laws do not, and were not intended to, do anything of the sort?

Sam-I-am-Alito responded by rambling in circles in a rather “Dr. Seuss-like” manner avoiding at all costs anything that resembled an actual answer to the question, and concluding:

“ ... But these questions that you pose are obviously very difficult and important and complicated questions that are quite likely to arise in litigation perhaps before my own court or before the Supreme Court.”

You didn't actually think he was going to answer that one did you? I can hardly imagine the President's nominee for SCOTUS saying “Well senator, I am glad you asked. Any administration which would take such broad liberties with the statutory language, knowing full well that they were violating the intent as well as the Constitution is criminal ... and further the Executive has usurped far too much power from the legislature”

So he passed. Buzzz -1 point.

SPECTER: (referring to a draft of a DOJ memo written by Alito) Is that really true when you say the president's views are as important as Congress? The president can express his views by a veto, and then gives Congress the option of overriding a veto, which Congress does not have if the president makes a signing declaration and seeks to avoid the terms of the statute ...

Another good point Arlen.

Alito responded with nothing of substance. Buzzz - ½ Point

For those of you keeping score at home, Sam-I-am-Alito is now in the hole.

Now we get to the segment that really toasted my buns. In another session Senator Coburn was lobbing softballs to the Judge and in my view he struck out ... ok maybe he fouled one off, you be the judge.

This was a question about using foreign law to interpret the US constitution:

ALITO: The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time.

They wanted them to have the rights of Americans. And I think we should interpret our Constitution -- we should interpret our Constitution. And I don't think it's appropriate to look to foreign law.

At this point I totally loose sight of the fact that Sam-I-am-Alito has actually responded appropriately to the question regarding foreign law because my Freedom Alarm goes off, Sirens, whistles and flashing lights, the whole deal. What's the problem you ask? The problem is this. The US government cannot give me any rights. I already have them.

In The Declaration of Independence Jefferson wrote "that they are endowed by their Creator with certain unalienable Rights". The rights are from God. If you don't believe in God thats fine, but the point is that the rights exist before the government so the government can't give you something you already have. It can interfere with your rights or protect your rights, but it can't give them to you.

In the constitution, the preamble states "in order to form a more perfect union ... and secure the blessings of liberty to ourselves ..." so we created the Federal government to secure the blessing of Liberty which encompasses our rights. We did not create the government so that it could in turn grant us certain rights. We created the government in first place. It only has the powers we (the people) gave it and nowhere in my constitution does it say that we gave the government the power to give us certain rights.

Similarly, the Bill of rights are very specific. They are a list of things that the government is specifically forbidden from doing. Namely abridging various rights that we had long before the government existed. So, to say the Bill of rights recognizes or protects rights is one thing but to say it GIVES us rights is wrong ... minus 50 points!

Now some may say that I am being picky, picky, picky but I am not so sure. I certainly believe that if Sam-I-am-Alito was being careful he could re-phrase his response, but I took it as an honest expression of how he views government. This may seem like a minor point, but I just had this very conversation with an otherwise well informed activist friend of mine last week. He is a “big government” progressive, but in our discussion he insisted that our rights are granted to us by the government. He left our discussion scratching his head.

This is important stuff! What is the role of my government in my life? Some may call this semantics, but I say this is a dangerous mentality for the preservation of liberty. Are we intended to be a product of the US government or is the US government to be a product of “We the People”? If one truly believes that rights are granted by the government liberty is in grave danger. In times of a conflict between the rights of the people and the goals of the state, it is much easier to revoke a “gift” from the state than a God given right. And in case you haven't noticed, there are currently some very serious conflicts between the goals of the state and our rights.

You can't take them with a fox

You can't put them in a box

You can't come into my house

Not even with a mouse

My rights are mine Sam-I-Am-Alito

1 Comments in Response to

Comment by Powell Gammill
Entered on:
See this is what you get for watching CSPAN.

I would add, where Alito also errs is in his belief that these are American Rights. They are human Rights. They are the rights of all humans throughout the world. The Constitution (DOI and BOR actually) is one of the rare governments that overtly states a certain few of these Rights in its founding documents.


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