Constitutional Democracy Colloquium

Yes, the Bush administration does pose a serious danger to basic liberties and constitutional democracy. Do the NRA and the ACLU agree on what that threat is? I doubt it. Each organization represents a pole in the partisan battle that successive Republican and Democratic administrations have waged over the last several decades on the definition of fundamental rights, a battle that is eroding our constitutional structures and protections.

Roughly speaking, the issue for the NRA is property rights, in its case the right to own guns (and for the Republican Party generally, the right to tax cuts, downsizing government, and turning back regulatory protections). For the ACLU, personal liberty is the rights issue, in this instance that of enemy combatants held without charges (and for the Democratic Party generally, the right to abortion, same-sex unions, and privacy). On June 28, the Supreme Court began to right the balance on matters of habeas corpus for prisoners held at Guantánamo and in the United States, showing that our system of checks and balances still functions-but just barely. The Court and every other institution of government-only consider the record of the Department of State, the Pentagon, and the CIA over the last three years-are now subject to reshaping for wholly partisan purposes.

Underlying the conflict between the “right” to property (and thus security) and the “right” to liberty is the degradation of politics itself and the political thinking and rhetoric that dominate the public square. Over the last two decades, the cumulative effect of ideological polarization between Democrats and Republicans has gained a powerful grip on our political system. The routine energizing of each party’s base in attacks and counter-attacks, once the coin of political campaigns, is now the common currency of Washington politics. The benign phrase “permanent campaign” masks full-time, well-funded efforts to debunk, catch out, and undermine candidates and elected officials alike. Sometimes these are the result of party “research” offices, sometimes the work of shock jocks; even the mainstream media have been drawn in. The Republican U.S. Senate candidate in Illinois withdrew after his wife’s claims in their divorce papers were unsealed in a suit brought by the Chicago Tribune. Where is his right to privacy?

With Democrats and Republicans locked in ceaseless combat, should we be surprised that the checks and balances of our constitutional system are buckling under the siege? The federal judiciary has come to mirror and augment this partisanship because each party when in control offers nominees who mirror its own views-and only its own views (usually on Roe v. Wade)-while obstructing the nominees of the other side. The resolution of the 2000 presidential election by judicial fiat shows one consequence of this ideological vetting of Supreme Court justices. So too,...