The Democratic debate on Saturday proved one thing: powerful interests that transcend the political parties have an agenda. That's the only explanation for the talking point mindlessly repeated by virtually all of the presidential candidates in both parties: "It is the first job of the president to keep Americans safe."
In recent weeks, two of the legal scholars I most admire -- Cass Sunstein and Eric Posner -- have independently called for possible limitations on the scope of First Amendment protection in light of the dangers posed to the United States by online radicalization messages directed at Americans. Although I certainly understand the concerns driving these suggestions, it is essential that we resist the temptation to restrict our most fundamental freedoms in moment of panic. This is not to say that our nation's security is not important or that preventing terrorist attacks is not a critical goal. But it is to say that this is not an appropriate way to protect ourselves.
Perhaps nothing has damaged the reputation of "substantive due process" more than that doctrine's association with Dred Scott v. Sandford (1857) -- the infamous decision holding that Congress lacked the power to ban slavery in federal territories and blacks had no rights under the Constitution that whites were bound to respect.
As always I don't want to take a stand for or against one party or the other. If you ask me, they both have their issues. But the issue here is one of universal concern, which has nothing to do with which party you belong to. The Grand Old Party was named because of its grand ideology, an ideology that was revolutionary at the time. And liberal. And inclusive, not exclusive.
When it comes to the Constitution, most of the self-proclaimed evangelicals in the current presidential field want to have it both ways. They pledge fidelity to the principles of the framers, yet their religiously inspired policies are often at odds with any plausible reading of the Constitution's text.
The latest terrorist act (and yes, we need to call it what it is) in Colorado is not a freedom of expression as provided by a constitution that binds together a people under a set of ideals. It is an act of war upon the values, the privilege of what it means to be an American; to be anyone who rings the bell for freedom.