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Major Victory for ACORN and the Constitution

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

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.

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).


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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.

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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