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Mary McGrory

Life, Liberty, Ashcroft

By Mary McGrory
Thursday, July 4, 2002; Page A23

On the Fourth of July we celebrate the signing of one of our two most consequential documents, the Declaration of Independence, which is about "life, liberty and the pursuit of happiness," of which there seems to be less all the time. Two hundred and twenty-six years after the tremulous but resolute members of the Continental Congress took up their pens and scratched their names on the radioactive parchment, we have an attorney general whose most active pursuit is of the death penalty.

His zealotry has been detailed by The Post's Dan Eggen, who recounts how John Ashcroft is pressuring U.S. attorneys all over the country to seek the federal death penalty. In that context, we have to be grateful to the Supreme Court. It came out against the execution of the mentally retarded. This hardly seems a cause for the "publick happiness" which John Adams prescribed for observance of the day our ancestors threw off the shackles of British rule. In view of the moratoriums on all executions in two states, and growing abolitionism, it seems a small thing, but these dispiriting times make us grateful for small favors. And we are free to hope that judges elsewhere will follow the example of U.S. District Court Judge Jed Rakoff, who bravely ruled that the federal death penalty, in view of the numerous instances of people being exonerated posthumously, was unconstitutional. He will doubtless be reversed, but it is a boon in lean times.

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The Supreme Court, under the leadership of William Rehnquist, has been anxious not to be seen as a slacker in the war against terror. The majority seems to reflect a widespread opinion that civil liberties can be sacrificed on the altar of security. The justices didn't make a decision on the subject of detainees, those hapless souls rounded up and shifted from jail to jail and never charged or brought to court. A lower court judge ruled that detainees should be granted open court hearings. The Supremes didn't rule, but stayed the judge's order until Justice got a chance to have its appeal heard.

Anyone feel safer because Tony Oulai, now in his 11th jail, won't get to defend himself in open court or find out when he can go home to the Ivory Coast? There's little suspense on where this court will come out on the question.

The majority on the court also put its oar in on the war on drugs. It extended to school authorities the right to conduct drug tests on students other than athletes who compete against other schools. The madrigal singers and the jocks will be treated the same. It is hard to improve on the disdain expressed by a dissenting Ruth Bader Ginsburg: "capricious and perverse."

No blow dealt by the court was heavier or of more moment than the ruling on school vouchers for students in failing public schools. The majority, as Justice John Paul Stevens observed in his dissent, "has removed a brick from the wall that was once designed to separate religion from government." The majority who favored the removal seemed to derive a gimmicky satisfaction from the fact that the checks would go not to any religious school but to the parents of the children who would go to those religious schools. Justice David Souter seemed exasperated by such evasion. In an uncharacteristically vehement dissent, he wrote, "I hope that a future court will reconsider today's dramatic departure from basic Establishment Clause principle." It is difficult for devotees of public education, who believe a democracy can never be relieved of its duty to teach all its children.

The Signers and Framers were men of faith. The Declaration began and ended with a reference to the Almighty. But they fervently believed in separation of church and state, and they never felt called upon to fall into the paroxysms of piety such as overtook their modern-day successors when they heard a court say that the Pledge of Allegiance with "under God" was unconstitutional. It may well be, but with John Ashcroft playing Savonarola was this the time to say so? If comparable fury and outrage were directed at the Supreme bench for its cavalier treatment of the First Amendment, with its guarantee of church-state separation, it might be more seemly.

The executive branch provided an entry in the "small favors" department. President Bush's long-awaited address on the Middle East turned out to be a speech on how he felt about Yasser Arafat and Ariel Sharon. It was coercive and condescending and, as Michael Elliott points out in Time magazine, "could have been delivered by a colonial governor" -- or Rudyard Kipling, the poet laureate of the British Empire -- the same crowd the Declaration of Independence freed us from. The speech was irrelevant, but at least it guarantees that we will pick up no Arab allies, without whom we cannot invade Iraq. Bush may at least have inadvertently put off I-day for yet awhile longer.


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