Yesterday, the Senate Judiciary Committee unanimously approved a bill giving the U.S. Attorney General the power to shut down any website with a court order, if  he determines that copyright infringement is  “central to the activity” of the site.  It doesn’t matter if the website has actually committed a crime, and there is no trial, which means that the law is a slam dunk violation of the U.S. Constitution.  The Combating Online Infringement and Counterfeits Act (COICA) is a little goody bought by the lobbyists and PACs of Hollywood, the recording industry and the big media companies, to block the rampant internet file sharing that has cost them a lot of money in lost sales and profits over the past decade.

I am adamantly opposed to filesharing and the ethically dishonest arguments used to defend it, most of which begin with “Everybody does it.” I sympathize with the artists whose work is being stolen, and the companies who have complained to Congress. But all the strong condemnation of filesharing by lawmakers and corporate executives doesn’t change a central fact: the Constitution says you can’t do what COICA allows. It says this in at least two places: the First Amendment, which prohibits government interference with free speech, and the Fifth Amendment, which decrees that property can not be taken from citizens without Due Process of Law. A law that lets a government official just turn off a website without a hearing or showing of proof? Outrageous. and unconstitutional.

You don’t have to take my word for it; indeed, reflecting on my grade in Constitutional Law (though really, Prof. Lewin, that was the most unfair test I have ever taken in my life!), you shouldn’t. But you don’t have to: read Wired…

“Scholars, lawyers, technologists, human rights groups and public interest groups have denounced the bill. Forty-nine prominent law professors called it “dangerous.” The American Civil Liberties Union and Human Rights Watch warned the bill could have “grave repercussions for global human rights.”  Several dozen of the most prominent internet engineers in the country — many of whom were instrumental in the creation of the internet — said the bill will “create an environment of tremendous fear and uncertainty for technological innovation.”Several prominent conservative bloggers, including representatives from RedState.com, HotAir.com, The Next Right and Publius Forum, issued a call to help stop this “serious threat to the Internet.” And Tim Berners-Lee, who invented the world wide web, said, “Neither governments nor corporations should be allowed to use disconnection from the internet as a way of arbitrarily furthering their own aims.” He added: “In the spirit going back to Magna Carta, we require a principle that no person or organization shall be deprived of their ability to connect to others at will without due process of law, with the presumption of innocence until found guilty.” Critics of the bill object to it on a number of grounds, starting with this one: “The Act is an unconstitutional abridgment of the freedom of speech protected by the First Amendment,” the 49 law professors wrote. “The Act permits the issuance of speech suppressing injunctions without any meaningful opportunity for any party to contest the Attorney General’s allegations of unlawful content.” Because it is so ill-conceived and poorly written, the law professors wrote, “the Act, if enacted into law, will not survive judicial scrutiny, and will, therefore, never be used to address the problem (online copyright and trademark infringement) that it is designed to address. Its significance, therefore, is entirely symbolic — and the symbolism it presents is ugly and insidious. For the first time, the United States would be requiring Internet Service Providers to block speech because of its content.”

I know all the commentators West of Fox think it is fun and appropriate to ridicule the Tea Partiers at every opportunity, and certainly they have made themselves an inviting target.  Nonetheless, if this bill (it isn’t a law yet, and indeed may never become one) doesn’t rouse that some small piece of recessive Tea Party DNA in their brains, then have allowed bias to swallow principle. The Tea Party’s lament has been that government is grabbing more and more power while shredding the Constitution and being contemptuous of matters like basic rights and process. The Democrats and progressives, aided and abetted by their mouthpieces in the media, thought it prudent to dismiss Tea Party concerns as a disguise for racism—despicable, unfair, but up to a point, effective. Yet how can they, or anyone, deny that the Tea Parties are on to something real and important?

As I write this, the Senate is attempting to degrade the value of American citizenship by installing a permanent gift to illegal immigrants, past, present and future: cross our borders illegally, breach our security, disrespect our sovereign right to choose who can receive the tax-payer financed benefits of living in America, and we’ll let your kids go to college and become citizens. This involves the government refusing to enforce the laws, of course, but because it will swell the ranks of future Democratic voters, enabling more abuse of power (while also swelling the cheap labor workforce, making Republican business allies rich), rule of law becomes expendable. Meanwhile, air travel passengers are being forced to submit to humiliating, invasive searches without due notice, as Senators trivialize them as “love pats.”

All of this springs from a toxic mix of the arrogance of power combined with callous disregard for making difficult choices and solving problems within the limits on government power, rather than in defiance of them. The Republicans are no different when they hold the reins.  What was the Bush Administration’s use of torture, previously acknowledged to be illegal and undeniably a violation of core American principles, other than a despicable short cut through the Constitution and rule of law, because, well, it was “necessary”? Each intrusion and violation opens the door for the next one, which opens the door a little bit wider yet, making us increasingly vulnerable to the abuse of government power by leaders who conclude that they know best—better than the voters, better than their predecessors, better than Madison, Jefferson and Adams. Recall how the health care bill was passed with dubious procedural tricks never before used to pass major legislation,  because, we were told,  similar tricks had been employed by Republicans to pass not-quite-so-major legislation in earlier end-arounds Constitutional requirements. It was “necessary,” you see. So was the Obamacare provision making purchase of health insurance mandatory, though there is a significant likelihood that it too violates the Constitution. The prohibition on denying insurance due to pre-existing conditions just won’t work without it, however, so it is “necessary.” Advocates for restrictions on campaign ads by groups and corporations believe it is “necessary” to prohibit political speech, although the Constitution is exquisitely unequivocal on that point: you can’t do it. Once necessity becomes a blank check to ignore the Constitution, how safe are our rights? And what is it about our current crop of elected officials that leads us to believe their judgment regarding what is and isn’t necessary should be trusted?

When Christine O’Donnell, Tea Party sweetheart, former Delaware candidate for the U.S. Senate, retired witch, one-time media punching bag and killer late night talk show punch line stated that her primary criteria for considering legislation would be whether it was consistent with the Constitution, she was ridiculed for it.  Admittedly, this was in part because there was evidence that she had no idea what was actually in the Constitution, but never mind: she was right. The Constitution and the Bill of Rights exist specifically to stop lazy, arrogant, irresponsible and conflicted leaders from taking away our rights because they deem it “necessary.” Day by day we are watching our core rights be marginalized by the very people who are sworn to protect it. They are neither honest, nor especially bright, nor courageous, and their loyalty and integrity are for sale, yet we not only accept their abuses, but prepare to trust them with even more power over our lives.

If we continue to do that, then we are the irresponsible ones.