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| Sholeh Patrick |
Healthy government requires balance
"If you remember only one thing," urged Texas law professor Cherie Taylor, "remember this: power corrupts." The students joked about her frequent repetitions, but reading case after case, against the backdrops of legal and political history, provided ample evidence that she was correct.
The framers of our government knew it well. Power tends to corrupt because it feeds humanity's basic vulnerabilities, and can cloud the judgment of even the best-intentioned. Fully aware of this, the Founding Fathers created a careful balance of power in the constitution which celebrates its 220th birthday this week -- a sharing of authority with checks against each member of the triumvirate structure. As long as each leg of the stool is even with the other, we have that balance and the republic is intact.
When it teeters, those checks and balances serve to level. When courts have appeared to make, rather than enforce or protect, law, the other branches right it with legislation. When statutes or executive branch procedure violates the Constitution, the courts cry foul and laws are amended.
Occasionally, that legislative fix isn't enough to right the stool.
The power of executive agencies to investigate crime has long been balanced against constitutional due process rights with the use of court review, such as a warrant or a hearing. When alerting a suspect too deeply frustrates investigation, laws in place for a quarter century allow for a secret (one-sided) court review.
What's new is the powerful ability of the executive branch to suspend rights without even a brief judicial review. A provision in the Patriot Act that allows agencies to independently demand records from third parties, such as Internet providers and phone companies, through "national security letters" has again been declared unconstitutional by a federal court.
According to Dept. of Justice records there has been a surge in NSLs under 18 U.S.C. 2709; from fewer than 9,000 in 2000 to nearly 50,000 in 2005. Because they could be obtained without court involvement, secret or
otherwise, a New York judge declared the provision unconstitutional in 2004 (but suspended the ruling until the law could be amended). Congress responded with an amendment, which was also declared unconstitutional this month. The judge said all it added was an assurance by the FBI that the NSL is necessary, still lacking that check of independent review.
The ruling follows this year's reports by the DOJ and FBI auditors, concluding that executive agencies potentially violated the law or their own rules over a thousand times while issuing NSLs in recent years -- violations that would not come to light quickly under the Patriot Act's secrecy rules.
One branch issuing, reviewing, and keeping secret, its mandates. No check or balance.
In any area of life -- be it health, individual, or governmental relationships -- when things are out of balance, problems persist until balance is restored. If our founders applied only one thing learned from other societies, and applied it so clearly and repeatedly in our governing document, it is that concentrated power cannot be trusted, and thus it must be spread evenly.
Sholeh Patrick is an attorney and a columnist for the Hagadone News Network. Send e-mail to sholehjo@hotmail.com.
