On the grand scale, of course, we have a written Constitution whose enumeration of delegated powers is almost universally regarded as a dead letter. Occasionally some mossback literalist on the Supreme Court will object to the lack of a pretext under any of the powers enumerated in Article I Section 8 — but all Congress has to do is repass it with a preamble saying it’s pursuant to this or that power, and it’s fixed. (The Commerce Clause is always a good hook to hang anything on; federal drug prohibition, for example, is supposedly an exercise of that power). Clear prohibitions like the First Amendment’s “Congress shall make no law” and the Fourth Amendment’s restriction of warrantless search and seizure, once the Supremes get through weighing “compelling public interests” and “reasonable expectations of privacy,” become at best one consideration among many.
And that’s just the interpretation of the alleged fundamental law by the constitutional lawyers on the Supreme Court.
What matters even more is the enforcement arms of the state apparatus just don’t pay much attention to the law. According to most state statute law, recording police officers in public performing public functions is clearly not interference with police business, as such; neither does it violate wiretapping statutes. But cops routinely arrest citizens for refusing to put away their cell phone cameras, because they really don’t care what the law says. Like hospital corporations that deliberately downsize staffing to unsafe levels and oil companies that deliberately cut every imaginable corner on safety measures, they judge the payoff as worth the risk of litigation.
When local voters or a city council reduce pot enforcement to the lowest police priority, oddly enough, police forces don’t adjust their priorities accordingly. You’d almost think these guardians of law and order don’t care what the law is, if it restricts their own power.
And the state bureaucracy doesn’t pay much attention to official policies made by their nominal superiors, the elected officials and their political appointees.
You probably remember how Reagan NSC staffers got around a little legal technicality like Congress’s refusal to fund the Contra death squads in Nicaragua: they just sold some arms to the Iranians and some crack to the Angelenos.
More recently, Tom Engelhardt and Nick Turse of the news site TomDispatch.com, which does some excellent reporting on the U.S. national security state, present some disturbing information about the activities of the U.S. military command in Iraq and Afghanistan (“So You Think You Know About the American Empire?” Alternet, September 16). At a time when Obama has scheduled a withdrawal of U.S. forces from Afghanistan next year and officially proclaimed combat operations in Iraq at an end, the Pentagon has begun construction of three $100 million military bases in Afghanistan that won’t be completed until after the projected pullout. Despite the plan to withdraw even advisory troops from Iraq, the military is proceeding with base upgrades. Meanwhile, the State Department has arranged to double private security contractor forces at the Baghdad Embassy to 7,000, and Xe Services (aka Blackwater) has created numerous subsidiaries and shell companies for to make their cozy relationship with the U.S. government a little less embarrassing.
So when it comes to restricting the state, the law isn’t worth the paper it’s written on.