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Major Victory for ACORN and the Constitution

by Glenn Greenwald

In September, I interviewed Rep. Alan Grayson about the unconstitutionality of Congress' attempt to de-fund ACORN, and a couple of weeks later, examined Supreme Court precedent -- principally the 1946 case of U.S. v. Lovett -- that left little doubt that the Congressional war on ACORN violated the Constitutional ban on "bills of attainder."  Yesterday, in a lawsuit brought by the Center for Constitutional Rights, Federal District Judge Nina Gershon of the Eastern District of New York found Congress' de-funding of ACORN unconstitutional and enjoined its enforcement.  This is a major victory not only for ACORN, but also for the Constitution.

Judge Gershon's opinion is a model of careful and dispassionate judicial reasoning.  Rejecting the DOJ's claim that Congress had merely exercised its funding discretion rather than "punished" ACORN, the court wrote:  "Wholly apart from the vociferous comments by various members of Congress as to ACORN's criminality and fraud . . . no reasonable observer could suppose that such severe action would have been taken in the absence of a conclusion that misconduct occurred."  The court pointed to numerous statements made by Senators, including the bill's primary sponsor (Sen. Johanns), in which they anointed themselves judge and jury to declare ACORN guilty of crimes with which they had not even been charged, let alone convicted.  Relying on Lovett -- which held unconstitutional a Congressional act banning specified individuals from government employment based on the unadjudicated finding that they had "subversive beliefs" and "subversive associations" -- Judge Gershon explained that under clear Supreme Court law:  "the discretionary nature of government funding does not foreclose a finding that Congress has impermissibly singled out plaintiffs for punishment." 

Events like this provide an important reminder about how crucial and well-crafted the Constitution is.  Though rarely invoked, the ban on "bills of attainder" is no technical or legalistic right; it's vital.  Allowing Congress -- rather than courts -- to pass judgment on parties' guilt and then punish them for it is to circumvent all of the due process rights guaranteed in a judicial proceeding.  It virtually ensures that, as happened here, guilt will be imposed due to political passions and a lynch mob mentality rather than a careful and fair examination of evidence.  It also leaves weak and unpopular parties far more vulnerable to punishment.  The fact that groups far more powerful than ACORN have actually been found guilty of serious wrongdoing yet have never been de-funded by Congress -- particularly defense contractors -- illustrates that danger.

The reasons the Founders barred such bills of attainder are perfectly highlighted by the ACORN case.  During the reign of abusive Kings, it was a favorite instrument for enabling unpopular parties to be convicted, punished and deprived without benefit of a trial.  Under the Constitution, parties aren't supposed to be found guilty of wrongdoing as a result of a Fox-News-led witch hunt joined by cowardly members of Congress.  The recent finding of the Massachusetts Attorney General that ACORN had not committed crimes in connection with the notorious prostitution videos underscores the danger of the state's assuming someone's guilt outside of the judicial process.  Congress is especially ill-suited to pass judgment on whether a particular party has violated the law, as they are far more likely to protect the powerful and popular and punish the weak and unpopular (which is one reason, incidentally, why it was wrong for Congress to retroactively immunize rich and powerful telecoms based on the consummately judicial finding that they acted in "good faith" when violating eavesdropping laws).

Yesterday's ACORN decision also highlights how crucial is the Constitution's separation of powers.  Unlike members of Congress, whose need to be re-elected renders them unwilling to resist irrational majoritarian mobs, Judge Gershon is a federal judge with life tenure who can much more easily ignore those considerations.  Even so, when a federal judge vindicates the Constitutional rights of a highly unpopular party, it is still courageous; a ruling like this can affect the judge's prospects for appointment to a higher court and can subject her to intense attacks, as is certainly going to happen here.  But being constitutionally immunized from the whims of the political process enables a federal judge to safeguard the core liberties of even vulnerable and unpopular parties in a way that the political branches simply will not do.  As the cowards in Congress rushed without a trial to unconstitutionally punish ACORN on a very bipartisan basis, Judge Gershon was able to ignore the lynch mob and dispassionately apply well-settled legal principles to safeguard core liberties.

There is an endless list of radical flaws in our political system, including our judicial branch.  But in those rare cases when things actually work the way they're designed to, it's worth reminding ourselves of why the Constitution is such a vital document and why it's so crucial that it be adhered to and defended.

UPDATE:  As always happens whenever there is a judicial decision that undermines the Right's political interests, there are going to be hordes of right-wing polemicists marching forth to denounce this ruling as "judicial activism."  They're already starting.  These are people won't bother to read a single word or case about "bills of attainder," but overnight, they're self-proclaimed legal scholars on this Constitutional prohibition and are in a position to criticize the Judge's ruling as legally erroneous.  Of course, the only thing they really know is that they hate ACORN and therefore dislike the outcome of this case.  In other words, they're denouncing the decision for reasons having nothing to do with law and everything to do with their own political beliefs and outcome preferences -- i.e., they're advocating, as usual, for the consummate act of outcome-based "judicial activism" which they endlessly claim to oppose.

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