when it's an undue burden to get a judge

Now let's get this straight. The Founders of our Nation structured a Constitution to ensure that We the People would not suffer the kinds of abuses of power that King George committed against his subjects. Our Founders structured a system of Government that accomplishes this by two significant means.

First, there is a division of powers in our Government. The Executive, Legislature, and Judiciary each have set powers, defined by the Constitution. Our Government is organized this way to create a system of checks and balances. If one branch overreaches its power, the other two can "check" it.

Second, we have a Bill of Rights guaranteeing citizens certain rights that the government cannot violate. In particular, the Fourth Amendment reads:

     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, supported by Oath or affirmation, and particularly
     describing the place to be searched, and the persons or things
     to be seized.

This isn't just arcane legal theory. This is the basis of our freedom as a people. It is the fullest expression of the genius of American Democracy. The ultimate beneficiaries of our Constitutional form of Government are "We the People."

This is also the heart of conservative political philosophy. We minimize the power of government in order to maximize the personal freedom of individual Americans.


But now we hear that the President of the United States gets to decide when he can disregard the Fourth Amendment rights of We the People. Now we hear that in his Constitutional role of Commander in Chief, he is not bound by the Constitution or by the law of the land. If, in his judgment, he feels that our democratic system of law jeopardizes our security, he can decide that the law doesn't apply to him.

Funny, I never heard this in any of the civics courses I took in school. Where is President Bush going to find activist judges to support this reading of the Constitution?


But let's take the President's logic one step further. The Bill of Rights grants the Executive the ability to conduct a search (which includes conducting wiretaps and intercepting email) if he obtains a Search Warrant from a Judge. (This is a fine example of our checks and balances in action). In fact, the Foreign Intelligence Surveillance Act of 1978 even gives the Executive the right to conduct the search first and get the permission of a secret court afterwards, within 72 hours (three days). But President Bush believes there are times when it's an undue burden to get a judge.

Let's apply that same logic to the hypothetical case of a fourteen year old girl who has an unwanted pregnancy, who fears the reaction of an abusive parent if he learns about her situation, and who wants an abortion. The Bush Administration would argue that it's an easy enough matter for the girl to go before a Judge and so bypass the need for parental notification. But what fourteen year old girl has lawyers on staff who can advise her and draw up the necessary papers? What fourteen year old girl knows how to negotiate the legal system? What fourteen year old girl has the legal sophistication to even know where to begin? And we don't even give the fourteen year old the option of getting her abortion first and then appearing before a judge within seventy-two hours.

If it's not an undue burden to ask a fourteen year old girl to get on the docket of a busy Court in order to exercise her Constitutional right to privacy, then why is it an undue burden for the President? He's got dozens of lawyers working for him full-time. He's got an entire Justice Department with immediate access to the courts. He's even got a secret court set up just for this purpose, the Foreign Intelligence Surveillance Court.

Surely if the President expects that the typical fourteen year old girl with no legal experience can get her case before a judge in a timely manner, the President of the United States can accept the same obligation for himself. He is a citizen, subject to the Law, just as any of us are.


And this is the point. We live in a nation of laws. We are governed by the Constitution and by the properly enacted Law of the land. We are not subject to the arbitrary whims of whomever happens to be the present leader. We are a Democracy. We do business differently than did, say, King George of England or ... Saddam Hussein.