Defender of the Constitution

Jeffrey Rosen is bullish on the Constitution.

“I have some optimism that Constitutional discussions can lessen the political polarization we see today,” the recently appointed president and CEO of the National Constitution Center said in an interview with The Hill.

“Members of the Tea Party refer to the Constitution. Members of Occupy Wall Street refer to the Constitution. It provides the basis for a higher conversation in this polarized age.”

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The man who has been called “the nation’s most widely read and influential legal commentator” lives in Washington with his wife and two sons and, when not overseeing the operations of the center in Philadelphia, teaches at George Washington University Law School.

He is also a non-resident senior fellow at the Brookings Institution as well as the legal affairs editor for The New Republic.

“I have the best jobs in the world,” he said.

Rosen’s parents were both psychiatrists. Their son, however, chose to look at the intricacies of human nature through the fine lens of the law.

He graduated summa cum laude from Harvard, received a second bachelor’s degree from Oxford and a law degree from Yale Law School.

He has spoken and written extensively on a broad range of issues related to the Constitution and the Supreme Court.

He characterized the high court’s decision in Bush v. Gore as a “disgrace,” was for the appointment of Chief Justice John Roberts, against the nomination of Justice Samuel Alito, and caused a dust-up with a piece that criticized Sonia Sotomayor when she was a leading candidate for a Supreme Court seat.

The right used the piece to bash Sotomayor. The left, meanwhile, bashed Rosen for using anonymous sources. Rosen defended his article, pointed out that other publications also used anonymous sources in covering judicial candidates and said conservative commentators deliberately distorted his words. He ended up supporting Sotomayor.

He has been called a progressive, but he rejects the label.

“I’m a Brandeisian,” he said, a reference to Louis Brandeis, the famed American jurist who was a Supreme Court justice from 1916 to 1939 and whom Rosen calls “my hero.”

He smiled. “WWBD — what would Brandeis do? — that’s my guide.”

Brandeis is also considered a progressive. But Rosen is quick to point out that the progressive tag 80 to 90 years ago meant something different than it does today.

“Brandeis, for example, called the states the ‘laboratories of democracy.’ He was against big government as well as big corporations. He opposed what he called ‘the curse of bigness,’ and was a great defender of our right to privacy.”

These are values that nowadays are often championed by conservatives and libertarians — and by Rosen, who has said the Transportation Security Administration’s (TSA) scanning procedures violate the Fourth Amendment’s prohibition of “unreasonable searches and seizures.”

He said he recognized the need for security, but agencies like the National Security Agency (NSA) are going beyond what’s needed.

“The NSA has been spying on us. The administration’s arguments for doing so are not persuasive. How is the collection of billions of pieces of information consistent with the Patriot Act, or the Fourth Amendment?”

Rosen pointed out that one of the authors of the Patriot Act, Rep. James Sensenbrenner (R-Wis.), has said that what the NSA has done was not what legislators intended.

“Eventually the Supreme Court will have to decide on the surveillance question,” Rosen said.

He believes the framers’ constitutional values should be translated to address technological innovations, and refers again to Brandeis who, in the 1920s, saw wiretapping as a Fourth Amendment violation.

The NSA and the TSA could design their programs in ways that protect privacy as well as security, Rosen said.

He called Chief Justice John Roberts’ tie-breaking decision on the constitutionality of President Obama’s healthcare law “an act of courage” because Roberts believes “the court needs to be seen as above politics.”

Rosen, who interviewed Roberts in 2006, said the Chief Justice “goes through a tug of war between two conflicting impulses.”

“He has long been concerned with court decisions breaking 5-4 along ideological lines, and that the people might lose faith in a Supreme Court that’s supposed to transcend politics.”

So, when Roberts got the chance in the ObamaCare case, he “placed the bipartisan legitimacy of the court above his own ideological agenda.”

In other historic decisions of the Roberts’ court, however — on cases involving Citizens United or the Voting Rights Act, for instance — the ideological impulse seems to have triumphed, he says.

Rosen disagrees with the Citizens United decision, which invalidated the McCain-Feingold Act limiting campaign contributions and opened the floodgates to super-PACs.

He blames the “political cluelessness” of the academics on the court for not recognizing the ramifications of such a ruling while championing “the free speech rights of corporations.”

He also sees judicial activism coming from the right.

“The conservatives on this Supreme Court are interventionists, doing what they accuse liberals of doing, interfering unnecessarily in laws they don’t like,” Rosen said.

“The gutting of the Voting Rights Act is a prime example,” he said, referring to the Supreme Court’s ruling in June that Section 4 of the VRA was unconstitutional, adding that while certain justices say they are being “color blind” they are actually being blind to history.

Section 4 stipulated which states were required to have any proposed changes to their voting procedures pre-cleared by the federal government. Those states, mostly of the Old South, were originally named because of histories of discriminatory voting practices.

The 14th Amendment, Rosen noted, was not ratified until 1868, over 80 years since the original Constitution, and during those years multitudes of people were denied equal protection because of their skin color.

“As Justice Ginsburg said, the framers of the 14th Amendment expected Congress, not the courts, to be the primary protector for voting rights,” he added.

By contrast, Rosen said the Roberts court showed an above-politics regard for fairness and human dignity by shooting down the Defense of Marriage Act.

Talking about and encouraging talk about the Constitution are not only what Rosen loves to do — they also comprise his job. Rosen’s face lights up when discussing the Constitution Center.

“My position is a tremendous honor. We actually have a mandate from Congress to further an understanding of the Constitution.”

He admits that public opinion is often the power influencing court decisions, acts of Congress and presidential actions.

“But the ultimate restraint is the text of the Constitution. It structures our conversations about these very important issues, and can renew our faith in reason and democracy.”

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