Bob Barr

Why Put Fish Above Our Civil Liberties?

The Atlanta Journal-Constitution
April 4, 2007

Road projects in our state—especially those involving federal funds (which is the vast majority)—can take years, sometimes decades, to make it from design to completion. Bridges and port deepenings, the lifeblood of many coastal regions, similarly consume years of time and millions of taxpayer dollars before the first scoop of silt is raised or the first girder placed. Constructing a new airport runway or taxiway may suffer countless delays and untold millions in wasted dollars before the first yard of dirt can be graded.

We have a federal agency devoted entirely to ensuring that the environment is protected before any significant project needed for the public good is allowed to go forward. Well over $7 billion is spent each year by the Environmental Protection Agency. Private companies, and state and local governments spend many times that in compliance costs.

Endangered species—from small, inedible minnows to spotted grasses and field mice— receive similarly high protection via the Endangered Species Act. When it comes to protecting our physical environment and ensuring that wildlife most citizens will never see— or care to see—receive the highest-priority care the law can provide, no delay seems too lengthy and no cost too dear.

We have accumulated countless environmental impact and endangered species reports over the past three decades, in order to justify allowing a single company or local government to diminish a square yard of our environment or harm a single snail darter. Let it never be said we do not have our priorities in order. But do we? When it comes to arguably our nation's most precious resource—our civil liberties—nary a dollar is hardly ever spent nor a moment's reflection wasted, ere legislation becomes law and those liberties are diminished or obliterated.

The Congress passed the USA Patriot Act in the weeks following the 9/11 attacks. Its vast powers have been employed by the FBI and other federal agencies tens of thousands of times since President Bush unhesitatingly signed the act into law. Has our Department of Justice taken a single step to protect our constitutional environment against the abuses visited upon the country by unsupervised employment of those powers?

When abuses of the extensive powers granted the FBI under the USA Patriot Act to obtain access to the most private of records belonging to America's citizens without ever securing approval of a federal judge came to light recently, did those eloquent champions of elderberry beetle rights demand the government cease and desist? Did anyone demand the government secure a Constitutional Impact Statement before proceeding further? Where were the environmental advocates—who rush to court to stop the slightest disallowed emission of a noxious fume—when the attorney general boasted recently that the Great Writ of habeas corpus finds no home in this administration's interpretation of the Constitution?

Since the advocacy groups, who so zealously protect our physical environment and those species of plant and animal deemed "endangered," are busy with concerns apparently to them far more important than civil liberties, perhaps its time to enact a "National Constitution Protection Act," or "NCPA" for short, patterned after "NEPA," the National Environmental Policy Act.

Like its environmental counterpart, NCPA would require the government to justify in writing and with sound constitutional logic and precedent, any proposed law or regulation that might adversely impact our civil liberties or any right guaranteed by the Bill of Rights. The act would require the government to employ steps that would pose the least danger to civil liberties, rather than allow it to get away with as significant a lessening of our rights as it possibly can, which is the current "standard."

If the federal government—and our state counterparts—were thus forced by law to justify any action threatening our civil liberties, and to consider lesser steps as alternatives, our rights would not be threatened with extinction as they are today. Government actions such as the abuses of the Patriot Act powers, unlawful domestic spying on Americans, enactment of a national identification card database, denial of the fundamental right to possess a firearm with which to protect oneself, the use of secret evidence in federal proceedings, and the taking of one's property for no reason other than the government wants someone else to have it—all would be priority candidates to be reviewed pursuant to a Constitutional Impact Statement. And frankly, that's a lot more important than whether some silly snail darter thrives in some backwoods stream in Tennessee.

Bob Barr occupies the 21st Century Liberties Chair for Freedom and Privacy at the American Conservative Union Foundation.