Conservatives embrace judicial activism? Has the world gone mad?

You know the world has gone whacky when Republicans start arguing that the Constitution needs to be interpreted loosely to take into account our changing world, and Democrats stand up for strict constructivism.

I recently ran across a couple of discussions about the court decision declaring the Bush Administration's no-warrant eavesdropping program illegal, and I was fascinated with the arguments being put forward and accepted by conservatives.

This decision by U.S. District Judge Anna Diggs Taylor declared that the National Security Agency program that listened in on phone calls without warrants violated the First and Fourth amendments to the Constitution, and is also in violation of the Foreign Intelligence Surveillance Act, known as FISA.

The Bush Administration argued that Article II gives the president broad, undefined powers during wartime, and that the Authorization for Use of Military Force (AUMF) resolution passed by in the wake of 9/11 overruled FISA.

What is amazing here is the legal rationale being put forward by this administration would make even the most ardent judicial activist cringe. To read Article II as giving the president the power to violate other parts of the Constitution and ignore laws passed by Congress makes the convoluted logic of Roe v. Wade look conservatively sound.

It was the Roe v. Wade decision that put the spotlight on judicial activism. This is the poster child for conservatives who fight to rid the courts of judges who believe in a "living, breathing Constitution," and replace them with jurists who strictly interpret the law.

Yet here, some of these same conservatives are asking for an extremely loose interpretation of the law to include powers not spelled out in the Constitution, what they call the Unitary Executive theory. What it should be called is the Ends-Justifies-the-Means theory.

This legal wrangling has consequences beyond theories. Violating FISA is a felony, and if this decision is upheld, it means a number of high officials could be brought up on charges, and President Bush himself would be open to impeachment.

That will not happen, of course, unless there is a dramatic exit of Republicans in Congress who will block any impeachment. The president would also likely issue pardons to any officials charged with violating FISA. But politically, this would not be pretty.

The chances for this decision holding up are pretty good. The recent Supreme Court decision in the Hamdan v. Rumsfeld case concerning prisoners in Guantanamo Bay held to a strict interpretation of AUMF, making it highly unlikely that the justices would reverse course in this matter.

Bush supporters have argued that the new threats posed by terrorism mean that we have to bend a few laws in order to protect the homeland. But FISA was written in 1978, during the Cold War, which posed much greater threats to our security and very survival than terrorism ever will.

It also should be noted that ending this NSA program does not preclude the government from intelligence gathering within the very liberal restrictions of FISA. The government still has the power to listen in on calls for 72 hours before having to get a warrant, for which they almost never get turned down.

The reason we have FISA in the first place is that past administrations, both Democrat and Republican, had so abused the privacy of Americans that restrictions were needed to insure they didn't step over the line again.

Back then, the reason used to justify these invasions of privacy was Communism. Today it's terrorism. Fear causes people to act irrationally. But the more one faces fear, the more that rationality returns, and we realize that not every sound in the dark is a bogeyman coming to get us.

Political movements come apart when they veer away from their established principles, and that is what I believe we are seeing here. Of the discussions I read on this subject, this comment left by blogger Mark Jaquith on the conservative HotAir.com site summed it up best:

"Perhaps the greatest accomplishment of Islamic terrorism is how it so quickly and completely shook Conservatives from their defining principles. Five years ago, I wouldn't have thought that I'd be seeing Conservatives encouraging the Executive Branch to break the law, praising judicial activists who twist the Constitution to match current fashions, cries for big government solutions and the willful deprecation of privacy rights.

"What's left for Conservatives? If you could stop a terrorist attack by aborting 1,000 babies, would you do it? How many core Conservative principles have to be cast aside in order to sufficiently combat terrorism?"

• Kirk Caraway is editor of Nevadapolitics.com, and also writes a blog on national issues at KirkCaraway.com.