The First Amendment marks out three areas in which the federal government is limited: no “prohibiting the free exercise” of religion, no “abridging the freedom of speech or of press,” no impeding the “right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Obama administration has compiled a sorry record in all three categories. But anyone who bothered to notice was dismissed by the elite media as paranoid and alarmist. Until now. Suddenly it is acceptable to complain about Obama’s “appalling” approach to the First Amendment.
Obama’s “living” Constitution now looks considerably less enlightened to reporters whose phone calls have been traced. The First Amendment has long been crumbling under slipshod jurisprudence. Obama is just giving it a final kick.
A “living” Constitution obviously lends itself to an unlimited and abusive federal government, as it renders all written protections passé. There is no quicker way to kill a constitution than to say it is alive. That just means the federal government is freed up to do whatever it wants. The Constitution has no meaning except what those in power give it at any particular moment.
Journalists didn’t mind this fashionable travesty when it meant religious freedom was squashed in the name of “women’s health” or political speech curtailed in the name of “campaign finance reform.” But now that the living-constitutionalists are snooping on phone records and hacking into e-mails in the name of national security, they balk. This is “chilling,” they say. We’re told that press freedom is sacred, often from the same pundits who cast complaints about the HHS mandate as partisan carping.
Yet to anyone paying attention, the Obama administration’s slippery treatment of the First Amendment should come as no surprise. The James Rosen incident, much in the news this week, reflects a pattern that was already on display in the rollout of the HHS mandate. Recall that HHS Secretary Kathleen Sebelius denied that she was violating the religious freedom of Christian organizations as those organizations weren’t “religious” (according to a new Orwellian criterion she had concocted, which defined only purely sectarian organizations as religious). Similarly, the Justice Department argued that it wasn’t violating the press freedom of James Rosen as he wasn’t press. He was rather an “aider and abettor and/or co-conspirator” in a spy ring for having receiving classified information about North Korea from an intelligence analyst. That appeared in a May 2010 affidavit.
It was well known that the Obama administration didn’t consider Fox News a real “news” organization. But who knew they would make the view official before a judge?
Editorialists at the Wall Street Journal point out that evidence for Rosen’s spying consisted of saying in an e-mail to his source that he wanted to break “news ahead of my competitors” and that they could “expose muddle-headed policy when we see it—or force the administration’s hand to go in the right direction, if possible.” The editorialists note that “if working with a source who uses an alias is now a crime, we’ve come a long way from the celebration of Bob Woodward and ‘Deep Throat.’”
Redefining journalists as spies and religious organizations as nonreligious instruments of state mandates are the tricks of totalitarian countries. Obama’s America is moving in that direction. The end point of liberalism is a coercive state in which the “law” is indistinguishable from the will of whoever holds power. A “living Constitution” sounds better than totalitarianism, but in principle it is no different.
What stops the march of the Left is not a philosophy of restraint but popular resistance. Some violations of the First Amendment are popular, some aren’t. So for now the Left’s leaders have to restrict themselves to the ones that are popular, such as the HHS mandate. But they hope that one day the unpopular ones will become popular. With a little more brainwashing in the public schools, they hope for that glorious day when Rush Limbaugh is thrown off the air and the IRS can harass conservative groups without triggering congressional hearings.
Former NAACP chairman Julian Bond has blurted out what many on the Left actually think about the IRS investigating the “Taliban wing of American politics”: “I think it's entirely legitimate to look at the tea party. Here are a group of people who are admittedly racist, who are overtly political, who’ve tried as best as they can to harm President Obama in every way.”
Conservative error has no rights. That’s the essential view of the Left. And reporters, holding a similar philosophy, usually don’t object to the shredding of the First Amendment that that prejudice entails until they find themselves on the receiving end of it.