GLENN GREENWALD: 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. MORE
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