Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Monday, May 22, 2006

An Update

To the previous post.

First, ACS Blog has some comments made by Prof. Geoffrey Stone about criminalizing the publication of classified information. An excerpt:

Should the United States criminally punish the press for publishing classified information? This inquiry poses a prospect unprecedented in American history. For more than 215 years, the United States has managed to flourish in the absence of any federal legislation directly prohibiting the press from publishing government secrets. The absence of such legislation is no accident. It clearly fulfills the promise of the First Amendment: "Congress shall make no law . . . abridging the freedom . . . of the press." . . .

Would it be good public policy to enact such a law? On balance, I think not. Once again, I return to the lessons of history. Even if such a law is constitutional, it is neither necessary nor wise. In more than two centuries of experience, the problem addressed by this "law" [i.e. publishing a secret actually causing harm to the country] has never actually arisen. This would be a law in search of a problem. This is never a sound basis for legislation, and certainly not when dealing with a freedom as precious as the freedom of the press.

Second, those noted anti-american liberals at the Cato Institute have a new report on Dubya's constitutional record. (H/T Talk Left). When you are deciding whether or not to entrust your freedom to King George, keep the report in mind:

With five years of the Bush administration behind us, we have more than enough evidence to make an assessment about the president’s commitment to our fundamental legal charter. Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes

• a federal government empowered to regulate core political speech—and restrict it
greatly when it counts the most: in the days before a federal election;

• a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;

• a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as “enemy combatants,” strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror—in other words, perhaps forever; and

• a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

President Bush’s constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.