John Whitehead's Commentary

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."--The First Amendment

The American people are in grave danger of losing their basic freedoms. The simple fact is that the Constitution is being undermined on virtually every front. Two recent events, one a poll and the other a speech, highlight just how far down the road we have gone.

A survey released several weeks ago by the McCormick Tribune Freedom Museum found that less than one percent of adults who responded to a national poll could identify the five rights protected by the First Amendment--freedom of religion, speech, the press, assembly and the right to petition the government. On the other hand, more than half (52%) of the respondents could name at least two of the characters in the animated Simpson television family, and 20% could name all five. And although half could name none of the freedoms in the First Amendment, a majority (54%) could name at least one of the three judges on the TV program American Idol, 41% could name two and one-fourth could name all three.

In a culture infatuated with celebrity and consumed in entertainment, it should come as no surprise that the American people know virtually nothing about their rights. They are constitutionally illiterate. "There was a depth of confusion that we weren't expecting," noted Dave Anderson, executive director of the museum. "I think people take their freedoms for granted. Bottom line."

But it gets worse. Many who responded to the survey had a strange conception of what was in the First Amendment. For example, 21% said the "right to own a pet" was listed someplace between "Congress shall make no law" and "redress of grievances." Some 17% said that the First Amendment contained the "right to drive a car," and 38% believed that "taking the Fifth" was part of the First Amendment. Think about this for a moment. How could James Madison, who depended on horses for transportation in his day, have placed the "right to drive a car" in the First Amendment?

The second event occurred on March 9. That day, newly retired Supreme Court Justice Sandra Day O'Connor gave an address at Georgetown University to corporate lawyers. In her speech, O'Connor said that the United States is in danger of edging toward authoritarian government--even a dictatorship--if the judiciary is undermined. O'Connor specifically pointed to the barrage of criticism which the Republican right has heaped on the courts.

In her address, O'Connor singled out a warning to the judiciary issued last year by scandal-ridden Tom Delay (R-Tex.), the former Republican leader in the House of Representatives. After the courts refused to save Terry Schiavo's life last March, Delay, speaking at the Christian Right's Justice Sunday, said: "The time will come for the men responsible for this to answer for their behavior." Delay later called for the impeachment of the judges involved in the Schiavo case, calling for more scrutiny of "an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."

These sorts of threats, O'Connor said, "pose a direct threat to our constitutional freedom." And as she told the lawyers assembled, "I want you to tune your ears to these attacks. You have an obligation to speak up. Statutes and constitutions do not protect judicial independence--people do."

One of the essential foundations of American government is an independent judiciary. An independent judiciary exists to protect individual rights from the other branches of the government. If not, those rights would amount to nothing. Thus, the courts must occasionally correct a president and even strike down a congressional enactment if it is unconstitutional. Of course, this will, as O'Connor said, occasionally upset the politicians. But if the courts didn't do this, they would not be doing their job--that is, to preserve the system of checks and balances so crucial to democratic government.

This balance is particularly relevant for us today when presidents routinely attempt to end-run the Constitution and a flaccid Congress has a near inability to act. In times such as these, the courts must act as a check on runaway executive power. If not, there is nothing to stop an imperial presidency. That is why O'Connor warned: "We must be ever-vigilant against those who strong-arm the judiciary."

We live in strange times--we may even be at a crossroads. There are those who believe we may soon be forced to choose between freedom and security once and for all. But when Americans have little clue as to what their freedoms really are, what do you suppose they will choose? As Justice O'Connor concluded: "It takes a lot of degeneration before a country falls to dictatorship, but we should avoid these ends by avoiding these beginnings." I fear that the "beginnings" have already begun.

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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