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Opinion 1 - Harv Teitelbaum
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Opinion 1 - Harv Teitelbaum

The Loophole in the Constitution

Question.  What do the following events have in common: The raiding of the headquarters of anti-IMF/World Bank demonstrators in D.C., under the pretense of “fire safety”; The dispersal, by the police themselves, of police-brutality demonstrators in Denver, under threat of arrest, and; numerous SLAPP lawsuits initiated by corporate interests against citizen activists?

Answer.  They all represent the stifling of an exercise of Constitutional rights by a stronger entity against a weaker, on behalf of powerful commercial or government interests.

Some might respond that the Constitution can still be applied to eventually hold the offending agencies or commercial entities responsible for their illegal actions, or to at least clear their innocent victims.  Others do not support the causes espoused by many of these citizen-activists, feel “they had it coming”, and are therefore willing to ignore Constitutional questions.  Unfortunately, both these attitudes are short-sighted and dangerous if we wish to preserve what’s left of our Constitutional democracy.

The weaker party in these conflicts, the citizen-activist, is at a disadvantage when it comes to time and resources.  Situations or conditions leading to citizen action are often immediate, short-lived, and pressing.  Even if state or corporate attacks are later deemed illegal, by thwarting the rights of activists, even temporarily, powerful parties have nonetheless effectively nullified such Constitutional rights as free speech, peaceable assembly, and security in persons and effects.

During the recent demonstrations against the World Bank and the IMF, police, worried that non-violent protesters might use chains, ropes or other non-contraband material to thwart arrest or removal from protest sites, raided the demonstators’ headquarters and confiscated material and equipment.  The police were able to declare the location a fire hazard, thereby gaining the legal cover to perpetrate what in effect was an unconstitutional search and seizure.  The police claimed to have found “a wick” and some empty pop bottles, which they concluded could have been used to make molotov cocktails.  Given the fact that these activists had been applying tremendous time and resources to non-violence training, this seems unlikely.

In Denver, following the shooting of an innocent civilian during a no-knock raid on the wrong house, protesters tried to focus attention on rampant police abuse and its propensity for lethal force.  The police, fabricating their own self-serving interpretation of the Constitution and then enforcing it through intimidation and threats, were able to deny the demonstrators their rights.

In the case of SLAPP’s, or strategic lawsuits against public participation, transferring the conflict from the streets or the arena of public opinion into the courts allows commercial interests to control, manage, and deflect dissent, taking advantage of their far-greater resources in money and legal counsel.  They can burden and distract citizens from pursuing their original cause, and then drag out and maintain a torturous situation beyond even the lifespan of an individual activist.

Citizen activism represents the highest form of democratic participation.  If the non-activist citizenry is complacent and silent, it in effect encourages and abets preemptive attacks on citizen-activists.  By condoning police and state security forces’ raids and attacks on non-violent protesters, allowing those forces to act as judge and jury, non-activists may also be contributing to the weakening of the Constitutional presumption of innocence.

Over time, police, bottom-feeding politicians, school boards, and corporate interests are emboldened to pursue increasingly more repressive policies and to take increasingly more repressive actions.  To some, this is excused as a tough-on-crime, “zero-tolerance” mentality.  To others though, it is a creeping neo-fascism, manifested through decreased liberty and increased, preemptive self-censorship.  Repression and self-censorship in turn only serve to weaken both the citizen participation and the dynamic exchange of information and opinion necessary for a true democracy.  In the process, Constitutional rights are devalued and marginalized to the point of irrelevance.

The Constitution and the Bill of Rights, to be effective now and in the future, must be applied in a proactive as well as a reactive manner.  Interference with the free exercise of clear Constitutional rights must not be tolerated.  This loophole must be closed.  The Constitution can not be truly effective if only applied defensively, which in effect allows more powerful interests to “win” through repressing first and then dealing with any questions later.  Rights must be actively protected and applied by guaranteeing the uninterrupted exercise of those rights.