How We Will Be a Self‐​governing Republic Again

Can anything wake up the press to its role as defender of the Constitution?

January 14, 2014 • Commentary
This article appeared in The Washington Times on January 14, 2014.

Years ago, while interviewing Supreme CourtJustice William Brennan for my book Living the Bill of Rights, I learned a lifelong lesson as a citizen and reporter, while asking him a sort of schoolboy question:

“What’s your favorite part of the Bill of Rights?”

His instant answer: “The First Amendment, from which all of our liberties flow.”

So it is when the media, in its various forms — from print to digital — are alert to government disabling of our individual constitutional liberties, we awaken to becoming a free people again.

A current example is what’s happening to the presidential prospects of New Jersey Gov. Chris Christie, who had been anointed by the media as a boldly promising prospect for the 2016 elections until the state and national media — deeply questioning the constitutionality of his current leadership — did a penetrating First Amendment job on him.

However, too much of the time, during the Bush‐​Cheney administration, and even worse, during the Constitution‐​disintegrating Obama administration’s reign, the press has refused to be what used to be called the “Fourth Estate.”

That is, the press keeps monitoring the other three branches of our government on the faithfulness of their protection of our freedoms and the rest of our identity as a truly free people, whom the government serves rather than spies upon. It also guards the right of each citizen to the protection of the First Amendment, in violation of which President Obama allows the secret tracking of reporters’ phone calls and Internet messages.

A current, particularly egregious case of the media not fulfilling its Fourth Estate role is its loss of interest in one of the most un‐​American violations of the separation of powers when Mr. Obama signed into law for fiscal 2012 the National Defense Authorization Act, which allows the military — without going to court — to detain and imprison anyone, including American citizens right here, who are suspected of involvement in terrorism.

As the American Civil Liberties Union points out, “The law does not require even an allegation that a detained person caused any harm or threat of harm to the United States or to any U.S. interest. Mere allegation of membership or support (otherwise undefined) of an alleged terrorist group could be the basis for indefinite detention.

“Under the American justice system, we don’t just lock people up indefinitely based on suspicion,” wrote the ACLU in response to the 2012 National Defense Authorization act on Feb. 22, 2012.

Nor have I seen any sustained concern — in print or digital media — that, as of this writing, the Supreme Court has yet to agree to review the National Defense Authorization Act. Not that I am filled with confidence that this ultimate protector of our rule of law will begin to bring us back to being Americans. But the high court’s involvement might somewhat awaken the press and the citizenry.

When I was out of college deciding what to do with the rest of my life, reading James Madison prodded me to become a reporter. Madison wrote:

“To the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression … to the same beneficent source the United States owes much of the lights which conducted them to the ranks of a free and independent nation.” So what would Madison and Thomas Jefferson — and Patrick Henry, so wary of federal executive power — think of the National Defense Authorization Act?

“In the Virginia Resolutions of 1798, Madison wrote that ‘in case of a deliberate, palpable and dangerous exercise of power by the federal government, states have the right and are in duty bound to interpose for arresting the progress of the evil,’ ” wrote the Tenth Amendment Center on Jan. 10.

A few states are trying to do just that. Have you heard much about it? How much do your kids know about the National Defense Authorization Act when so few schools teach American history — let alone the dramatic history of how we often got the Constitution to protect us from our government?

Along with its report on how Madison would have reacted to the National Defense Authorization Act, the Tenth Amendment Center added: “Thomas Jefferson, in the Kentucky Resolutions of 1798, declared ‘that every state has a natural right in cases not within the compact to nullify of their own authority all assumption of powers by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise the right of judgment for them.’ ”

This brings me to another urgent piece of advice from Justice Brennan. “How,” he once asked me, are we going to get the words of the Bill of Rights into the very lives of students?” He then answered his own question:

“Tell them stories about how we fought for those rights.”

It works. As I often recall, when I used to visit elementary, middle and high school classes around the country (before arthritis limited my traveling), I would do just that. And students got excited. Not that I’m a magnetic orator, but they were learning, it seemed for the first time, that they were Americans — and what to do about that.

Moreover, in all the debates and accusations about education reform, the need to involve students in their heritage of personal constitutional liberties is very seldom mentioned.

I worry about what kind of country my grandchildren’s children will be living in.

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