I wrote a long post early this morning on race and the Jude verdict. Blogger lost it. I'll try to reconstruct it later.
In the car earlier, I heard a few minutes of an interesting discussion on Charlie Sykes show regarding the Feingold web commercial in which a Rove-like figure (complete with a 30s gangster movie voice - no such thing as laying it on too thick, I guess)tells a President "George W." (but its Washington, how mind blowingly ironic) to stop treating the Constitution like it was "set in stone."
Since when does Russ think the Constitution is "set in stone." Not during the Alito hearings, that's for sure. Whether or not you like Roe v. Wade, there is no way you get it without opting for a "living" - even mutating - Constitution. Charlie points out the "double standard." You can recognize a right of privacy not readily inferable from any provision in the Constitution, while the interpretation of the Fourth Amendment cannot be varied to reflect current realities.
But, if Feingold is guilty of hypocrisy, are conservatives as well? Do we want the Constitution "set in stone" when it comes to abortion, but "living and breathing" when it comes to terrorist surveillance?
I don't think so. In supporting the abortion right, Feingold is supporting a restriction on democratic government not readily inferable from any provision in the Constitution. In sponsoring his horrible campaign finance law with John McCain, he is taking an absolute constitutional prohibition ("Congress shall make no law abridging the freedom of speech") and making it relative in a way that undercuts core First Amendment values. While courts have long recognized some limitations on the speech right (i.e., no yelling "fire" in a crowded theater, no "fighting words"), making it unlawful for people to run ads criticizing politicians at election time unless they have raised the necessary money in a certain way strikes at the core of what the First Amendment is about. You've got to break the tablets to make that happen.
For Bush, the Fourth Amendment prohibits "unreasonable" searches and seizures. This invites judicial definiton of what is and is not unreasonable. Although the Clause goes on to state that no warrants shall issue without probable cause, the courts have always recognized that not all searches require warrants, i.e., not all warrantless searches are unreasonable. His interpetation of how that related to cross-border communications to acquire foreign intelligence is arguably constitent with the way that the Fourth has long been interpeted and in which Presidents have always (or at least often) acted. Read about that here.