LEGAL VERSUS CONSTITUTIONAL


So I guess all those times when the government was making sure Vice-President Dick Cheney was in an undisclosed, secure and safe location it was OUR safety and security they were worried about.

On a more serious note, the Senate, lead by the Bush administration's lap dog, Pat Roberts, has voted on party lines NOT to investigate the NSA domestic spying program. Senator Mike DeWine of Ohio said it best on Fox News when he said that, "“We Don'’t Want To Have Any Kind of Debate About Whether Its Constitutional."” At least he's honest about it.

The real problem with this quote is what he says right before this statement. Here is the quote. "You know, there'’s been some controversy about whether or not this program is legal or is not legal....But we don'’t want to have any kind of debate about whether it'’s constitutional or not constitutional." Senator DeWine demonstrates that he did not pay very close attention in seventh grade social studies, for if he did, he would know that the question of whether an action is legal or illegal is a completely different question from whether or not it is constitutional or unconstitutional. The legality of an action deals with whether or not it adheres to the laws passed by Congress or one's State Legislature. The constitutionality of an action deals with whether or not the Constitution allows it. An action can be legal and unconstitutional, or it can be illegal and constitutional, or any other combination.
For instance, if I murder my neighbor, that would be illegal, but constitutional. There is a law passed by my State Legislature making murder a crime. However, the Constitution never mentions murder. On the other hand, if the President anoints someone a Supreme Court Justice, without getting the consent of the Senate, that would be unconstitutional, but perfectly legal. The Constituion clearly states that the President must get the advice and consent of the Senate for all Supreme Court Justice appointments. There is no law written that regulates the appointment of Supreme Court Justices.

So Senator DeWine is making a mistake that nearly everyone is making in the case of the NSA domestic spying program. He is conflating legal with constitutional. And with his vote this week, he is making sure that the Senate will never even get to ask the questions, "Is this program legal?", and "Is this program constitutional?" I wonder why?